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CASES    ^£2& 


/' 


ARGUED  AND  DETERMINED 


THE  COURT 


FOR 


THE  TRIAL  OF   IMPEACHMENTS 


CORRECTION  OF  ERRORS, 


1ST 


THE  STATE  OF  NEW-YORK. 


BY  GEORGE  CAINES, 

COUNSELLOR  AT  LAW,  AND  REPORTER  TO  THE  STATE. 


VOL.  I. 


NEW-YORK. 
IVinted  and  published  by  I.  Riley 

1810. 


DISTRICT  OF  NEW-YORK,  ss. 

BE  IT  REMEMBERED,  That  on  the  eighteenth  day  of  January,  in  the 
twenty -ninth  year  of  the  Independence  of  the  United  States  of  America, 
George  Caines,  of  the  said  district,  hath  deposited  in  this  office  the 
title  of  a  book,  the  right  whereof  he  claims  as  author,  in  the  words  and 
figure  following,  to  wit ; 

"  Cases  argued  and  determined  in  the  Court  for  the  Trial  of  Impeach- 
ments and  Correction  of  Errors,  in  the  State  of  New-York.  By  George 
Caines,  Counsellor  at  Law,  and  Reporter  to  the  State.     Vol.  1." 

In  conformity  to  the  act  of  the  Congress  of  the  said  United  States,  enti- 
tled, "  An  act  for  the  encouragement  of  learning,  by  securing  the  copies  of 
"  maps,  charts  and  bi;oks,  to  the  authors  and  proprietors  of  such  copies,  during 
"  the  limes  therein  mentioned." 

EDWARD  DUNSCOMB, 

Clerk  of  the  District  of  New-York. 


TABLE  OF  CASES. 

The  Numerals  denote  the  Page  in  tlw  Introduction. 

Page  Page 

Bergen  v.  Bennett '       1  Jenkins  v.  Union  Turnpike  Co.        86 

Church  v.  Bedient  and  others    .       21  Jenkins  v.  De  Groot    ....     122 

Duguet  v.  Rhinelander    .     .     .     xxv  Johnson  &  Weir  v.  Ludlow  .     .   xxix 

Furman  v.  Coe  and  others     .     .       96  Le  Roy  and  others  v.  Servis  and 

Grant  and   others   v.   Bank   of  others iii 

United  States 112  Livingston  v.  Rogers    .     .     .     .  xxvii 

Grant  v.  Bissett  and  others  .     .    ibid.  Swartwout  v.  Woolsey  and  others  73 

Hallett  v.  Peyton 28  Vos  &  Graves  v.  Unit.  Ins.  Co.       vii 

Hallett  8c  Bowne  v.  Jenks    .     .      43  Waters  and  others  v.  Stewart     .     47 


PREFACE, 


THE  Decisions  now  offered  to  the  Public,  are  the 
Judgments  of  a  Court  of  dernier  resort,  and  of  the 
highest  importance.  To  be  acquainted  with  deter- 
minations of  inferior  Tribunals,  would  be  of  scarce- 
ly any  utility,  if  those  of  this  were  unknown.  It 
is  from  hence  we  are  to  receive  the  Supreme  Law 
of  the  land :  for  such  its  opinions  may  well  be  term- 
ed ;  because,  however  our  Legislature  may  enact 
and  ordain,  whatever  is  thus  enacted  and  ordained, 
is  here,  in  almost  all  cases,  to  be  expounded  and 
enforced.  It  is  here  that  the  worth  of  the  adjudica- 
tions of  every  other  Court,  is  to  be  ascertained.  It 
is  in  this  mint  they  receive  their  stamp'  and  ster- 
ling value.  The  endeavours,  therefore,  of  the  Au- 
thor have  been  directed  to  collect  as  many  of  the 
antecedent  Decisions  of  the  Court  of  Errors  (for, 
thank  God  !  it  is  not  yet  known  as  one  for  the  trial 
of  Impeachments)  as  he  possibly  could.  Those 
now  obtained  will  form  an  introductory  part  to  the 
present  number.  So,  what  may  be  in  future  ac- 
quired, will  precede  the  Reports  of  the  year,  and 
though  this  extension  of  the  original  plan  will  na- 
turally demand  an  increase  of  price,  the  already  ex- 
perienced liberality  of  the  Bar  is,  on  this  point,  a 
sufficient  guaranty  that  the  Work  will  not  on  this 
account  be  the  less  acceptable.     The  Determina- 


u         ,  PREFACE. 

tions  now  prefixed  to  the  Cases  reported  by  the  Au- 
thor, have  been  furnished  by  the  kindness  of  Tho- 
mas R.  Gold,  Esq.  and  were  adjudged  while  he 
was  in  the  Senate.  The  opinions  he  read,  are  given 
as  those  of  the  Court,  and,  though  expressed  in  his 
language,  contain  the  principles  on  which  the  Cases 
were  decided. 

GEO.  CAINES, 

New-York,  December,  1804. 


CASES 

ARGUED  AND  DETERMINED 

IN    THE 

COURT  FOR  THE  TRIAL  OF  IMPEACHMENTS 

AND 

CORRECTION  OF  ERRORS 

IN    THX 

STATE  OF  NEW- YORK  : 

FEBRUARY,  1801. 

against 

Peter  Servis,  Peter  Little,  Samuel  1 

Runyions,  James  Warren,  and>  Respondents. 
others,  } 

THE  appellants  filed  their  bill  in  chancery,  stating,  that  in  ALBANY, 
1768,  Peter  Servis,  and  twenty-four  others,  presented  to  Sir  \^->r>*s 
Henry  Moore,  formerly  governor  of  the  province  of  New-  Where  there  are 

m  ,  several  complai- 

Tork,  a  petition,  praying  him,  for  their  use,  to  purchase  from  nants  to  a  bill 
the  Oneida  Indians  25,000  acres  of  land,  then  in  the  county  junction,  an  affi- 
af  Albany,  but  now  in  that  of  Herkimer,  and  to  grant  them  i^ne,  Showing 
Tetters  patent  for  the  same.     That  for  money,  or  some  other  j^quWe^hT- 

terposition,  is 
sufficient;  and  a 
lemurrer  that  all  have  not  joined  is  bad.  Whether  our  courts  will  entertain  a  plea  that  a  con- 
tact is  illegal,  because  in  contravention  of  the  royal  instructions  respecting  grants  of  lands  to 
patentees  >  Qy.  A  demurrer  to  a  bill,  because  seeking  a  discovery  of  that  which  would  subject 
to  the  penalties  of  the  act  against  buying  pretended  titles,  is  bad,  unless  it  appear  the  answer 
would  show  a  scienter  of  the  seller's  being  out  of  possession,  and  a  subsisting  adverse  posses- 
sion. If  a  plaintift"  be  properly  before  the  court  of  chancery  for  a  discovery,  he  may  pray  r<" 
•rf,  nnd  a  demurrer  to  the  whole  bill  on  that  accoant,  is  bad 


iii  CASES  IN  ERROR  IN  THE 

ALBANY,     valuable  consideration  (not  particularly  koown  to  the  corn- 

v^ m^s>-*~s  plainants)  paid,  delivered,  or  performed,  by  Sir   William 

H.  Le  Uoy  ami  Johnson,  formerly  of  the  county  of  Tr>jon,  deceased,  and  on 

v.  consideration  that  he  would  pay  all  the  office  and  other'fees, 

P.  Scrvis  and  ....  ,    *         .  .  ,      .  ,    ,  . 

otbers.        on  issuing  the  letters  patent,  tue  petitioners  agreed  With  him, 
■ — —— "  that,  on  their  obtaining  a  grant  for  the  said  25,000  acres, 
they  would  hold  the  same  in  trust  for  him,  and  duly  convey 
#  {v  #the  whole  to  him  in  fee.    That  in  the  year  1769,  letters  pa- 

tent were  issued  for  the  above  lands,  in  favour  of  the  peti- 
tioners, the  office  and  other  fees  whereof  Sir  William  John- 
son paid ;  upon  which,  the  patentees  did,  for  the  considera- 
tions aforesaid,  and  in  pursuance  of  their  said  agreement,  by 
sufficient  deeds  in  the  law,  grant,  release,  and  convey  the  said 
25,000  acres  of  land,  to  the  said  Sir  William  Johnson,  in  fee- 
simple,  by  virtue  of  which  the  said  Sir  William  Johnson 
took  possession  thereof,  caused  the  same  to  be  surveyed, 
and  trees  to  be  marked  in  the  boundary  lines  thereof.  The 
bill  then  set  forth  a  regular  chain  of  title,  from  Sir  William 
Johnson,  for  23,000  acres  ;  and  also,  that  after  the  death  of 
Sir  William,  and  early  in  the  war  between  the  United  States 
and  Great  Britain,  Sir  John  Johnson,  the  son,  and  one  of 
the  executors  of  Sir  William,  had  the  custody  of  the  convey- 
ances from  the  patentees,  and  to  guard  against  their  loss,  or 
for  some  other  reason,  buried  them  in  the  earth,  by  means 
whereof  they  were  either  wholly  lost,  or  rendered  illegible, 
and  were  therefore  altogether  out  of  the  power  of  the  com- 
plainants. That  Peter  Servis  and  the  other  defendants,  en- 
deavouring to  avail  themselves  of  the  loss  or  destruction  of 
thc^e  conveyances,  and  claiming  title  to  the  said  lands,  had 
broi>  .:s  oi  ejectment  for  them,  wherefore  they  pray** 

■  d  a  discovery,  an  injunction  to  stay  proceedings  in  the 
several  ejectment  causes,  that  the  complainants  might  be 
quieted  in  their  possession,  and  that  such  other  and  further 
.chef  might  be  afforded,  as  was  agreeable  to  equity  and  good 
i -onscience.  To  the  bill  was  annexed  an  affidavit  of  the  apv 
;,eliant,  Gtrritt  Boon,  swearing,  that,  according  to  his  know 
ledge,  information,  and  belief,  the  material  facts  charged 


STATE  OF  NEW-YORK.  iv 

were  true,  and  that,  according  to  his  information  and  belief,     ALBANY, 
the  deed  or  deeds  from  the  patentees  to  Sir  William  John'     s.^v"^/ 
son,  was,  or  were  lost  or  destroyed,  as  in  the  bill  was  set  H'  L0elh^,°sy  and 
forth.     To  this  some  of  the  defendants  demurred,  and  as-   „  .,  v\ 

P.  bervis  and 

signed  for  reasons,  1st.  That  the  complainants  ought  to  others, 
have  made  affidavit,  that  they  had  not  in  their  power  or  "" 
custody  the  deed  or  deeds,  concerning  which  they  seek  a 
discovery,  and  for  the  loss  whereof  they  pray  relief.  2d. 
That  the  agreement  between  Sir  William  Johnson  and  the 
patentees,  as  set  forth  in  the  bill,  was  illegal,  and  not  entitled 
to  the  aid  of  a  court  of  equity.  3d.  That  the  bill  charged 
that  the  defendants  claimed  by  conveyances  *executed  by  *  v 

persons  out  of  possession,  and  that  a  discovery  of  that  fact 
would  subject  the  defendants  to  a  penalty.  4th.  That  the 
complainants  prayed  a  discovery  of  the  defendants'  title,  and 
to  be  quieted  in  possession,  before  the  title  of  the  complain- 
ants was  established  at  law.  5th.  That  the  title  of  the 
complainants,  as  set  forth  in  the  bill,  was  merely  triable  at 
law,  where  it  might  be  fully  ascertained  and  established,  if  it 
was  as  stated  to  be.  Lastly.  That  the  bill  contained  no  equi- 
ty. These,  they  contended,  were  good  reasons  for  demur- 
rer ;  1st.  Because,  where  it  is  intended  to  obtain  any  speci- 
fic relief,  upon  the  loss  of  a  particular  deed,  and  thereby  give 
to  chancery  a  jurisdiction  to  which  it  would  not  otherwise 
be  entitled,  in  exclusion  of  the  common  law,  it  becomes 
necessary  that  the  party  complainant  should  annex  a  satis- 
factory affidavit  to  his  bill,  to  inform  the  court  of  the  loss  he 
complains  of,  and  the  necessity  of  equitable  interference.  2d. 
That  such  affidavit  ought,  in  the  present  case,  to  have  been 
made  in  different  terms,  or  by  all  the  complainants.  Get- 
ritt  Boon  may  have  been  informed,  and  may  verily  believe, 
and  may  hope  to  be  able  to  prove,  as  he  states  in  his  affidavit, 
that  the  petitioners  named  in  the  bill  of  complaint  did  re- 
spectively convey  all  their  right,  title,  and  interest  to  Sir 
William  Johnson,  and  may  also  have  been  informed,  and  ve- 
rily believe,  that  the  deeds  were  destroyed,  as  alleged  ;  yet 
the  other  plaintiffs   may  not  believe  any  such  matter,  aivi 


CASES  IN  ERROR  IN.  THE 

may  actually  have  evidence  to  the  contrary,  or  possess  the 
deeds  about  which  they  were  inquiring.     3d.  That  there 
others  an    was  not  any  necessity  for  changing  the  jurisdiction  from  law 
P  Servis  and   to  eclulLv  >  f°r  tne  complainants,  if  the  aid  of  chancery  was 
others.        wanted  for  discovery  only,  might  have  the  benefit  of  it  on  a 
bill  confined  to  that  object.     4th.  That  the  tide  of  the  com- 
plainants, if  any,  was  a  legal  title,  and  that  if  Gerritt  Boon 
were  able  to  prove  (as  he  swears  he  hopes  to  do)  the  con- 
veyances to  Sir  William  Johnson^  even  a  discovery  would 
not  be  wanted.     5th.  That  if  any  one  of  these  reasons  is 
good  cause  of  demurrer,  the  cause  must  be  regularly  out  of 
court. 

The  Chancellor  having  allowed  all  the  demurrers  respec- 
tively, and  ordered  the  complainants'  bill  to  be  dismissed, 
with  costs,  as  to  the  demurrants,  the  cause  now  came  be- 
fore the  court  on  an  appeal  from  that  decision.  After  hear- 
ing argument,  the  court  resolved,  1st.  As  to  the  first  point, 
*  vi  that  the  ^authority  of  precedent  was  wanting  to  give  it  sanc- 

tion, no  sufficient  reasons  having  been  assigned,  to  induce 
the  court  to  sustain  it ;  that  on  the  contrary,  considerations, 
resulting  from  inconvenience  in  all,  and  utter  impossibility 
in  many  cases,  afforded  just  grounds  for  repelling  the  excep- 
tion. 2d.  That  it  is  considered,  no  decree  on  the  merits  of 
the  complainants'  case  is  ever  made  on  the  evidence  con- 
tained in  the  affidavit  annexed  to  the  bill ;  but  that  as  such 
affidavit  is  merely  to  present  probable  or  colourable  grounds, 
for  chancery  interference  and  examination,  there  could  be 
no  hesitation  in  saying,  that  the  affidavit  of  Gerritt  Boon 
was  sufficient  in  terms  for  that  purpose ;  and  that  the  excep- 
tion taken  to  it  must  be  disallowed.  3d.  On  the  second 
cause  of  demurrer,  objecting  illegality  to  the  alleged  agree- 
ment between  Sir  William  Johnson  and  the  original  paten- 
tees, in  contravening  the  salutary  principles  upon  which  the 
instructions  of  the  royal  government,  regulating  colonial 
grants,  were  grounded,  it  is  sufficient  to  say,  it  has  been 
justly  admitted,  that  this  is  highly  delicate  ground ;  and  that 
the  principles  of  this  objection,  if  allowed,  must  attach  to  it 
very  controlling  consequences,  upon  questions  of  real  pro- 


STATE  OF  NEW-YORK.  vi 

perty  in  the  state ;  but,  on  consideration,  this  does  not  ap-     AL?8A^Y' 

pear  to  be  included  in  that  class  of  cases,  which  have  been   '   ■ — ^,— m_i* 

affected  by  the  principle  resorted  to,  the  general  consequen-  H-  L«  R°y  an(1 

ces  of  which,  in  its  operation,  if  sanctioned  by  this  cause,  to  t. 

-  n  .  i,i-i_  P.  Servis  and 

the  prejudice  of  bonafde  purchasers,  probably  without  no-        others. 

tice,  is  an  argument  why  it  ought  not  to  be  extended.     4th.  ——————— 

The  third  cause  of  demurrer  urges,  that  the  discovery  pray- 
ed, would  endanger  the  defendants  in  law,  and  subject  them 
to  a  penalty.  On  this  point,  as  a  scienter,  or  knowledge  of 
the  seller's  being  out  of  possession,  and  a  subsisting  adverse 
possession,  at  the  time  of  the  sale,  are  necessary  to  consti- 
tute an  offence  against  the  statute  alluded  to,  the  answer  to 
this  part  of  the  bill,  disclosing  the  fact  prayed,  might  be  so 
drawn,  as  not  to  contain  any  admission  which  would  endan- 
ger the  defendant  in  law.  5th.  The  remaining  objection  is, 
that  the  complainants  blended  in  their  bill  relief  with  a  prayer 
for  discovery,  when,  from  aught  appearing  in  the  case,  a 
court  of  law,  upon  the  discovery  being  obtained,  is  compe- 
tent to  afford  adequate  redress.  As  the  Chancellor's  retain- 
ing jurisdiction  on  the  point  of  relief  m  this  cause,  would 
involve  a  consideration  of  the  trial  by  jury,  the  question  pre- 
sents an  aspect  peculiarly  *important.  On  this  point,  *  vii 
though  there  may  be  sufficient  grounds  disclosed  to  change 
the  jurisdiction,  yet,  as  the  complainants  were  properly  be- 
fore the  court  upon  the  point  of  discovery,  the  defendants 
were  bound  to  answer  this  part  of  the  bill ;  and  the  demur- 
rer, therefore,  to  the  whole,  was  not  well  taken,  and  ought 
to  have  been  overruled.  The  cases  on  this  question  arc  con- 
tradictory. The  law  is  not  bound  down  by  a  series  of  uni- 
form decisions,  in  a  manner  not  to  be  shaken,  and  so  as  to 
preclude  the  consideration  of  the  reason  of  the  rule.  Upon 
this  last  ground,  the  reason  of  the  rule,  it  will  be  seen,  that 
a  decision  in  conformity  to  the  above  opinion  will,  at  the 
same  time  that  it  discountenances  the  doctrine  of  turning 
round  the  suitor  upon  nice  and  critical  exceptions,  operate 
no  prejudice  to  the  defendants  upon  the  merits  of  the  ques- 
tion ;  because  a  judgment,  overruling  a  demurrer  in  chan- 


vii  CASES  IN  ERROR  IN  THE 

ALBANY,  cerv  |g^  in  jt3  effects,  in  nature  of  a  respondeas  ouster  in  % 

^^m^-m*,'  court  of  law.     The  opinion  of  the  court,  therefore,  is,  that 

II.  Le  Roy  and  the  causes  assigned  do  not  sustain  the  decree  in  this  cause, 

others  " 

v.  and  judgment  of  reversal  must  be  entered. 

P.  Servis  ami  J       ° 

others. 


Andrew  Vos  and  John  Boonen  Graves  against 
The  United  Insurance  Company. 

a  mere  sailing  IN  error  from  the  supreme  court.  The  special  verdict 
derstooS  to  be  on  which  judgment  was  rendered,  contained  the  following 
a  breach  of  neu-  W**  On  the  2 1st  June,  1 798,  the  defendants,  for  Vos  and 
affccfa^oi^  -  of  Graves,  insured  eight  thousand  dollars  on  the  American  brig 
insurance.  Columbia,  from  New-York  to  Amsterdam,  at  a  premium  of 

17  1-2  per  cent.  At  this  time  neither  party  knew  the  Texel 
was  blockaded.  It  was  warranted  in  the  policy  that  no  loss 
should  arise  to  the  defendants,  by  reason  of  capture,  seizure, 
or  detention,  in  the  port  of  Amsterdam,  the  Texel,  or  the 
Vile,  and  that  the  cargo  was  American  property.  The  plain- 
tiffs for  an  additional  premium  of  two  and  a  half  per  cent. 
obtained  liberty  from  the  defendants,  to  touch  and  trade  at 
Hamburgh,  which  was  granted,  in  consequence  of  the  fol- 
lowing letters  written  to  the  defendants. 

"  Nexv-Tork,  25th  June,  1798. 

"Sir, 

"  The  cargo  of  the  brig  Columbia,  Benjamin  Weeks,  mas- 

*  viii  ter,  being  insured  at  the  Nexv-Tork  Insurance  Company,  *at 

and  from  hence  to  Amsterdam,  on  the  14th  instant,  and  the 

accounts  daily  receiving,  rendering  motives  of  precaution 

extremely  necessary  ;  we  therefore  propose  to  order  the 

vessel  to  touch  at  Hamburgh  for  orders,  which  may  be  done 

without  delay,  as  she  is  to  go  north  about,  provided you  xvill 

permit  it  in  the  policy  without   any  additional  premium  : 

And  should  our  friends  advise  that  it  would  be  dangerous 


STATE  OF  NEW- YORK.  viii 

to  proceed  to  Amsterdam,  in  that  case  the  risk  should  end     '^J^m?^' 
at  Hamburgh.  *  f-ly>_f 

"  We  are,  &c.  «  VOS  and  GRAVES.      Vos *»d  Gravc3 

"  To  the  President  of  the  Uni- 1  Un't  £*  Co. 

£«/ Insurance  Company"       J  — — — — 


THE    SAME    TO   THE    SAME. 

New-York,  27th  June,  1798.' 
"  Sir, 

"  On  being  informed  that  the  Texel  was  blockaded  by  the 
English,  and  a  ship  from  Philadelphia,  bound  to  Amsterdam, 
had  actually  been  sent  to  Yarmouth,  we  applied  to  you  yes- 
terday to  obtain  leave  for  the  brig  Columbia  to  touch  at 
Hamburgh  for  orders.  From  this  circumstance  we  conceive 
it  highly  interesting  to  the  office,  to  grant  the  permission 
without  the  charge  of  an  additional  premium.  At  any  rate 
we  would  rather  have  the  vessel  proceed  on  as  the  policy 
now  stands,  than  to  augment  the  premium  ;  for  the  circum- 
stance of  the  blockade  was  unknoxvn  to  us,  when  the  insu- 
rance was  effected,  and  it  is  probable  it  may  be  withdrawn 
by  the  time  the  vessel  reaches  Amsterdam.'''' 

The  plaintiffs  had  property  on  board  to  the  amount  of 
the  sum  insured.  They  also  owned  the  brig,  which,  with 
the  cargo,  was  American  property.  The  brig  sailed  on  the 
voyage  insured,  and  arrived  at  Cruxhaven,  on  her  way  to 
Hamburgh,  in  August,  1 798.  In  three  or  four  days  after, 
she  sailed  from  Cruxhaven  for  Amsterdam.  On  the  day  she 
left  Cruxhaven,  she  was  captured  by  a  British  frigate,  and 
carried  into  Yarmouth.  The  brig  and  cargo  were  libelled 
in  the  High  Court  of  Admiralty  of  England,  and  were  con- 
demned by  Sir  William  Scott,  who  pronounced  the  following 
sentence.  "  There  is  pretty  clear  proof  of  neutral  property 
in  this  case,  both  of  the  ship  and  cargo ;  but  the  vessel  was 
taken  attempting  to  break  a  blockade.  It  is  necessary  for 
me  to  ^observe,  that  there  is  no  rule  of  the  law  of  nations  *  \x 

more  established  than  this,  that  the  breach  of  the  blockade 

B 


CASES  IN  ERROlt  IN  THE 

ALBANY,  subjects  the  property  so  employed,  to  confiscation.  Among 
v^p-s-^^/  all  the  contradictory  positions  that  have  been  advanced  on 
Vosand  Graves  t|ie  faw  of  nations,  this  principle  has  never  been  disputed; 
Unit.  ins.  Co.  it  is  to  be  found  in  all  books  of  law  and  in  all  treaties ;  every 
""  man  knows  it ;  the  subject^  of  all  states  know  it,  as  it  is 
universally  acknowledged  by  all  governments,  who  possess 
any  degree  of  civil  knowledge.  This  vessel  came  from 
America,  and,  as  it  appears^  with  innocent  intentions  on  the 
part  of  the  American  owners  ;  for  it  was  not  known  at  that 
time  in  America,  that  Amsterdam  was  in  a  state  of  invest- 
ment ;  and  therefore  there  is  no  proof  immediately  affecting 
the  owners.  But  a  person  may  be  penally  affected  by  the 
misconduct  of  his  agents,  as  well  as  by  his  own  acts  :  and 
•  if  he  delegates  general  powers  to  others,  and  they  misuse 
their  trust,  his  remedy  must  be  against  them.  The  master 
was  by  his  instructions  to  go  north  about  to  Cruxhaven. 
This  precaution  is  perhaps  liable  to  some  unfavourable  in- 
terpretation :  the  counsel  for  the  claimant  have  endeavoured 
to  interpret  it  to  their  advantage  ;  but,  at  the  best,  it  can  be 
but  a  matter  of  indifference.  When  he  arrived  at  Cruxha- 
ven, he  was  to  go  immediately  to  Hamburgh,  and  to  put 
himself  under  the  direction  of  Messrs.  Roue  £s?  Company. 
They  therefore  were  to  have  the  entire  dominion  over  this 
ship  and  cargo.  It  appears,  however,  they  corresponded 
with  persons  at  Amsterdam,  to  whom  farther  confidential 
instructions  had  been  given  by  the  owners ;  and  these  or- 
ders are  found  in  a  letter  from  Messrs.  Vos  &?  Graves,  of 
New-York,  to  Boue  &?  Company,  informing  them,  that  the 
Columbia  was  intended  for  Amsterdam-*-c<ms\gcit&  to  the 
house  of  Crommelin,  to  whom  Boue  &?  Company  are  direct- 
ed to  send  the  vessel  on,  "  if  the  winds' should  continue  un- 
steady, and  keep  the  English  cruisers  off  the  Dutch  coast:" 
if  not,  they  were  to  unload  the  cargo,  and  forward  it  by  the 
interior  navigation  to  Amsterdam.  Boue  &?  Company  ac- 
cordingly direct  the  master  "to  proceed  to  Amsterdam,  it 
the  winds  should  be  such  as  to  keep  the  English  at  a  dis- 
tance."    There  is  also  a  letter  from  the  master  to  Bout;  from 


STATE  OF  NEW-YORK.  ix 

€ruxhaven,  in  which  he  says,  "  Amsterdam  is  blockaded."     AL,HSq1NV' 
We  have  this  *fact  then,  that  when  the  master  sailed  from 


Cruxhaven^  the  blockade  was  perfectly  well  known  both  to  v 

him  and  the  consignees:  but  their  design  was,  to  seize  the      "'*•  Ins-Co- 
opportunity  of  entering  whilst  the  winds  kept  the  blockading  *  ^ 

force  at  a  distance.  Now,  under  these  circumstances,  I 
have  no  hesitation  in  saying,  that  the  blockade  was  broken. 
The  blockade  was  to  be  considered  as  legally  existing,  al- 
though the  winds  did  occasionally  blow  off  the  blockading 
squadron.  It  was  an  accidental  change  which  must  take  place 
in  every  blockade :  but  the  blockade  is  not  therefore  sus- 
pended. The  contrary  is  laid  down  in  all  books  of  autho- 
rity ;  and  the  law  considers  an  attempt  to  take  advantage 
of  such  an  accidental  removal,  as  an  attempt  to  break  the 
blockade,  and  as  a  mere  fraud."  But  it  has  been  said,  that 
by  the  American  treaty,  there  must  be  a  previous  warning- 
Certainly  where  vessels  sail  without  a  knowledge  of  the 
blockade,  a  notice  is  necessary;  but  if  you  can  affect  them 
with  the  knowledge  of  that  fact,  a  warning  then  becomes  an 
idle  ceremony,  of  no  use,  and  therefore  not  to  be  required. 
The  master,  the  consignees,  and  all  persons  intrusted  with 
the  management  of  the  vessel,  appear  to  have  been  suffr- 
ciently  informed  of  this  blockade  ;  and,  therefore,  they  are 
not  in  the  situation  which  the  treaty  supposes.  It  is  said 
also,  that  the  vessel  had  not  arrived;  that  the  offence  was 
not  actually  committed,  but  rested  in  intention  only.  On 
this  point  I  am  clearly  of  opinion,  that  the  sailing  with  an 
intention  of  evading  the  blockade  of  the  Texely  was  begin- 
ning to  execute  that  intention  •  and  is  an  overt  act  constitu- 
ting the  offence.  From  that  moment  the  blockade  is  fraudu- 
lently invaded.  I  am,  therefore,  on  full  conviction,  of 
opinion,  that  a  breach  of  blockade  has  been  committed  in 
this  case  ;  that  the  act  of  the  master  will  affect  the  owner 
to  the  extent  of  the  whole  of  his  property  concerned  in  the 
transaction.  The  ship  and  cargo  belong,  in  this  case,  to 
th,e  same  individuals,    and  therefore   they  must  be  both 


x  CASES  IN  ERROR  IN  THE 

ALBANY'     involved  in  the  sentence  of  condemnation."     The  mate,  on 
V^^-~v-^n^  his  examination  as  a  witness  in  the  cause,  deposed — "  That 
osa%    laNes  it  was  generally  understood  among  the  Americans  at  Crux- 
Unlt-  Ins' Co*   haven,  at  the  time  the  Columbia  sailed   from  thence,  that 
Amsterdam  was  considered  as  a  blockaded  port,  and  it  was 
*  xi  so  understood  by  himself  and  the  captain  *of  the  Columbia  ; 

that  the  British  ship,  upon  falling  in  with  the  brig,  imme- 
diately seized  her  as  being  bound  to  a  blockaded  port,  and 
also,  on  the  pretext  of  her  having  Dutch  property  on  board  ; 
that  it  was  generally  understood  by  the  Americans  at  Crux- 
haven  at  the  time  the  Columbia  left  it,  and  it  was  understood 
by  the  captain  and  him,  that  it  was  the  practice  of  British 
cruisers  to  stop  vessels  bound  to  Amsterdam,  and  send  them 
back  without  seizing  them,  and  only  to  seize  in  case  of  a 
second  attempt  to  enter  Amsterdam  ;  and  that  under  this 
idea,  the  captain  sailed  for  Amsterdam."  When  it  was 
generally  believed  in  the  city  of  Nerv-Tork,  that  Amsterdam 
was  blockaded,  to  wit,  on  the  18th  of  September,  1798,  the 
defendants  insured  the  American  ship  Patriot,  from  New- 
Tori  to  Amsterdam,  with  liberty  to  touch  at  Altona  within 
one  miie  of  Hamburgh,  for  17  1-2  per  cent,  to  return  2  1-2 
per  cent,  if  the  voyage  ended  at  Altona. 

Upon  the  facts  thus  found,  the  majority  of  the  court  gave 
judgment  for  the  defendants,  for  the  reasons  assigned  in  the 
two  following  opinions,  delivered  by  Mr.  Justice  Kent  and 
Mr.  Justice  Radc'ijf. 

Kent,  J.  On  these  facts  two  questions  arise:  1.  Will 
a  voluntary  attempt  by  the  captain  to  break  a  blockade  be 
sufficient  to  destroy  the  right  of  recovery  on  the  policy  ? 
2.  If  it  will,  is  there  the  requisite  evidence  in  this  case  of 
that  attempt  ?  In  answer  to  the  first  question,  I  am  of 
opinion  that  such  an  attempt  takes  away  from  the  assured 
his  right  to  recover ;  for  he  can  never  be  allowed  to  indem- 
nify himself  upon  an  innocent  party,  from  the  consequences 
of  his  own  want  of  skill,  or  from  his  negligence  or  folly. 


STATE  OF  NEW-YORK.  » 

The  act  of  the  master  must  be  referred  to  his  principal, 
who  appoints  him ;  and  whenever  a  loss  happens  through 
the  master's  fault,  unless  that  fault  amount  to  barratry,  the  Vos  and  Graves 
owner,  and  not  the  insurer,  must  bear  it.    It  is  a  fault  in  the    Unit.  ins.  Co. 
master,  to  occasion  a  loss  of  property,  from  his  carelessness,  "" 
or  want  of  competent  skill ;  and  much  more  is  it  the  case,  if 
he  xvilfidly  occasion  that  loss,  as  by  resisting  search,  break- 
ing a  blockade,  &c.     He  is  charged  with  a  discreet  and 
faithful  execution  of  his  trust,  and  it  is  against  his  duty  to 
expose  the  property  unnecessarily  to  risk,  either  from  natu- 
ral perils,  or  from  perils  arising  from  the  violation  of  his 
neutrality.     It  is  a  point  not  to  be  disputed,  that  an  attempt 
^knowingly  to  break  a  blockade,  is  a  violation  of  neutral  xu 

duty,  and  occasions  a  forfeiture  of  the  property  ;  and  it  can- 
not be  supposed,  unless  it  be  so  expressed,  that  the  insurer 
takes  upon  himself  such  risk.  The  risk  of  fault  in  the  mas- 
ter (barratry  excepted)  is  not  a  risk  enumerated  in  the 
policy  ;  and  it  would  be  very  unreasonable,  that  the  insurer 
should  be  holden  beyond  his  express  undertaking,  for  the 
fault  or  folly  of  the  master,  whom  the  insured  selects  and 

controls.f     In  answer  to  the  second  question,  I  have  no  t  JMtffor,  isfito 

'  t  \  ...  l*4-  ,79to  ,88- 

doubt  in  concluding,  there  is  sufficient  evidence  in  the  case  2  Vatin,  "7.  79. 

161.  650. 

of  a  wilful  attempt  by  the  captain  to  break  the  blockade  of 
Amsterdam.  This  evidence  results  from  the  condemnation 
in  the  British  court  of  admiralty ;  and  for  the  conclusive 
effect  of  that  sentence,  I  refer  to  my  opinion  in  the  causes 
of  Vandenheuvel  v.  The  United  Insurance  Company,  and 
Church.  There  is  also  sufficient  evidence,  without  resort- 
ing to  the  sentence.  When  the  captain  left  Cruxhaven,  he 
sailed  with  the  understanding  that  Amsterdam  was  a  block- 
aded port;  and  he  sailed  also  under  the  idea,  that  if  he 
should  meet  with  a  British  cruiser  in  his  attempt  to  enter 
Amsterdam,  he  would,  for  the  first  attempt,  be  sent  back, 
and  not  seized.  This  appears  by  the  testimony  of  the  mate, 
and  it  is  sufficient  to  establish  the  fact  of  the  blockade,  as 
against  the  plaintiffs,  (it  being  the  admission  of  their  master,) 
until  they  repel  it  by  direct  proof  to  the  contrary.     But 


xji  CASKS  IN  ERROR  IN  THE 

ALBANY,     there  is  no  such  contrary  testimony  in  the  case.     It  would 

1801.  J  J 

K^^m^^mm^/  seem,  indeed,  to  be  implied,  from  some  of  the  observations 
Yos  and  Graves  0f  Sir  William  Scott,  which  are  thrown  into  the  case,  that 

V. 

Unit.  Ins.  Co.  winds  had  occasionally  blown  off,  or  kept  at  a  distance,  the 
~  blockading  squadron,  but  at  what  precise  time,  or  to  what 
precise  distance,  does  not  appear.  We  do  not  know,  except 
by  necessary  deduction  from  the  testimony  of  the  mate,  what 
was  the  actual  state  of  the  blockade,  or  how  far  the  British 
cruisers,  were  at  the  time  in  a  situation  to  preserve  it.  Nor 
do  we  know  the  situation  the  vessel  was  in,  or  her  proximity 
to  Amsterdam,  when  she  was  captured.  The  mate  informs 
us  only,  that  the  master  understood  when  he  sailed  from 
Cruxhaven,  that  Amsterdam  was  blockaded;  that  he  sailed 
with  an  intent  to  attempt  to  enter  it,  and  with  die  under- 
standing that  for  his  first  attempt  he  would  only  be  sent 
back,  and  tliat  he  was  captured  the  day  he  sailed.  How 
near  he  had  approached  the  coast  of  the  Vlie  and  Tcxel,  we 
do  not  know.  lie  might  have  reached  the  coast,  for  it  is 
*  xiit  *within  the  reach  of  a  day's  sail.     Every  reasonable  conclu- 

sion that  the  admissions  of  their  mate  will  warrant,  is,  how<- 
ever,  to  be  drawn  against  the  plaintiffs,  so  Jong  as  they  fur- 
nish no  other  proof  <o  explain  or  repel  those  admissions. 
My  opinion  accordingly  is,  that  the  existence  of  the  block- 
ade, the  wilful  attempt  of  the  master  to  break  it,  his  capture 
while  executing  that  attempt,  and  at  no  great  distance  from, 
if  not  in,  the  neighbourhood  of  the  blockading  port,  are  all 
necessarily  to  be  inferred  from  the  case,  and  that  judgment 
ought,  therefore,  to  be  given  for  the  defendants. 

Radcliff,  J.  On  the  21st  June,  1798,  the  date  of  the 
policy,  neither  party  knew  of  the  investment  of  Amsterdam, 
and  this  excludes  the  idea,  that,  by  any  special  agreement 
or  understanding,  the  insurance  could  have  been  meant  to 
extend  to  any  peril,  for  breach  of,  the  particular  blockade  in 
question,  if  any  existed.  1st.  It  is  a  settled  rule,  that  the 
insured,  in  order  to  comply  with  his  warranty,  must  not 


STATE  OF  NEW-YORK.  *ffi 

only  maintain  the  property  to  be  neutral,  but  so  conduct 
himself  towards  the  belligerent  parties,  as  not  to  forfeit  his 
neutrality  ;  he  must  pursue  the  conduct  and  preserve  the  Vos  and  Grave* 

v. 

character  of  a  neutral.     This  being  the  import  of  the  war-    Unit.  ins.  Co. 
ranty,  and  the  condemnation   being  founded  on  a  breach  of  — — — 

neutrality,  it  operates  to  preclude  the  plaintiffs,  on  the  prin- 
ciples adopted  with  regard  to  the  effect  of  foreign  sentences, 
in  the  case  of  Vandenheuvel  v.  The  United  Insurance  Com- 
pany* 2d.  In  the  present  case,  the  plaintiffs,  before  the 
vessel  sailed  from  New-Tor k,  to  wit,  on  the  27th  June^  in 
consideration  of  law,  had  notice  of  the  blockade.  This  ap- 
pears by  their  letter  to  the  defendants  of  that  date.  Al- 
though the  information  was  not  then  certain,  it  was  suffi-  \ 
cient  to  excite  serious  apprehensions,  and  to  put  them  on  their 
■guard,  which,  in  judgment  of  law,  is  deemed  competent 
notice. f  The  captain,  however,  before  he  sailed  from  \\  Atk.Wi.  3 
Cruxhaven,  had  actual  notice  of  the  blockade ;  and  there  can 
be  no  doubt  but  the  plaintiffs  are  liable  for  his  acts.  He 
sailed  with  the  professed  intent  to  evade  it,  if  an  opportu- 
nity should  offer,  but  under  an  idea  that,  by  the  treaty  of 
1794,  he  was  entitled  to  notice  to  desist,  and  to  be  sent  back 
on  the  first  attempt.  The  provision  in  the  treaty  on  the  sub- 
ject, it  is  obvious,  cannot  apply  to  a  case  where  the  party  al- 
ready possesses  the  requisite  information.  This  is  the  rule 
in  all  cases  where  a  party  is  to  be  affected  by  notice.  But 
it  is  objected,  that  *the  captain  was  not  in  the  act  of  break-  *xiv 
ing  the  blockade ;  that  it  existed  merely  in  intention,  and  he 
was  therefore  not  liable  to  seizure.  If  this  idea  be  correct, 
then  no  such  capture  can  be  lawful,  until  the  line  of  blockade 
be  actually  invaded.  The  resolution  may  be  formed  and  act- 
ed upon,  and  no  progress  in  the  execution  of  it  can  be  stop. 
ped  or  prevented  till  the  breach  be  made.  A  construction  so 
forced  and  limited,  appears  to  me  inconsistent  with  an  ef- 
fectual exercise  of  the  right.  It  may  be  difficult  to  define 
its  precise  extent,  but  it  is  more  reasonable  to  adopt  the  rule, 
that  the  besiegers  are  entitled  to  take  preventive  measures  ; 
and  that,  where  the  resolution  to  break  a  blockade  is  form- 


xiv  CASES  IN  ERROR  IN  THE 

ALBANY,     ed,  and  begun  to  be  executed,  within  a  reasonable  distance  to 

1801. 

K^—^f^^j  render  it  practicable,  the  offence  is  incurred,  and  the  party 

Vos  and  Graves  ijable  to  seizure.     Such  was  the  case  in  the  present  instance. 

Unit.  Ins.  Co.  From  the  testimony  of  the  mate,  as  well  as  from  the  sen- 
tence, it  appears,  that  an  actual  blockade  was  understood  at 
the  time  to  exist ;  as  a  fact,  it  seems  not  to  have  been  ques- 
tioned. But  the  particular  situation  of  the  blockading  force 
does  not  appear,  nor  do  I  think  it  material.  Although  the 
party  may  have  intended  to  avail  himself  of  an  accidental 
interruption  occasioned  by  winds  and  tempests,  this  intent 
will  not  excuse  him,  for  such  interruption  cannot  be  consi- 
dered as  destroying  the  existence  of  the  blockade.  At 
least,  if  he  attempts  to  enter  under  such  circumstances,  it 
is  at  his  perils  and  he  subjects  himself  to  the  hazard  of  sei- 
zure and  confiscation.  I  think  the  reasoning  of  Sir  William 
Scott)  whose  opinion  is  contained  in  the  sentence  annexed 
to  the  case,  is  satisfactory,  and  that  the  sentence  on  the 
merits  was  right,  and  of  course,  that  the  plaintiffs  have  for- 
feited their  neutrality,  and  ought  not  to  recover  on  the  po- 
licy, admitting  the  sentence  open  to  investigation.  Neither 
is  he  entitled  to  recover  the  premium,  because  the  risk  had 
actually  commenced,  and  the  warranty  was  forfeited  by  a 
subsequent  breach  of  neutrality. 

Against  this  judgment,  on  behalf  of  the  plaintiffs  in  error, 
Brockholst  Livingston  argued  that  it  was  erroneous,  because 
the  defendants  assumed  every  risk  attached  to  an  attempt  to 
enter  a  blockaded  port ;  because  the  condemnation  of  the 
High  Court  of  Admiralty  of  England  is  manifestly  unjust — 
The  defendants  understood  the  Columbia  was  going  to  a 
port  supposed  to  be  in  a  state  of  blockade,  and  therefore  in- 
sured the  plaintiffs  against  a  seizure  and  condemnation  on. 

•  xv  that,  as  *well  as  any  other  account.     This  appears  from  the 

policy,  from  the  additional  premium,  and  from  the  corres- 
pondence. The  policy  is  to  Amsterdam.  This  was  effect- 
ed without  suspicion  of  a  blockade.  The  risk,  therefore,  as 
to  the  future  state  of  that  city,  fell  upon  the  assurers.  If 
news  of  the  blockade  had  been   received  the  next  day,  thr 


STATE  OF  NEW-YORK.  xv 

plaintiffs  were  not  bound  to  break  up  the  voyage.     The  in-     ALP8A,NY> 
surance  being  at  and  from  Nexv-York,  the  underwriters  could    K^m^f^J 
not  be  compelled  to  refund  any  part  of  the  large  premium  V«  and  Graves 
which  was  paid.     The  plaintiffs,  thus  circumstanced,  were    Unit  ins.  Co. 
not  obliged  to  unload  their  vessel,  or  be  at  the  expense  of  a 
new  insurance  to  another  place;  without  saying  a  word, 
they  might  have  gone  on,  and  if  taken,  even  in  an  attempt  to 
enter,  the  defendants  must  have  paid.     Thus  a  merchant 
who,  in  peace,  warrants  his  property  neutral,  does  not  in- 
sure against  future  events,  or  engage  the  goods  shall  so  con- 
tinue the  whole  voyage.     If  war  break  out  the  next  day,  he 
is   still   covered,  t     The    insurers,  in   the  words   of  Lord  I"  See   Fttrtado 

1  v.      Rogers,     3 

Mansfiekly  u  take  upon  themselves  all  futur©  events  and  Bos.  &  Pull. 
risks,  from  men  of  war,  enemies,  detention  of  princes," 
&c.  &c.  An  insurance  to  a  blockaded  port  is  not  within 
the  description  of  unlawful  contracts.  The  laws  of  the 
United  States  do  not  prohibit  such  commerce.  If  publicly 
known  that  an  American  vessel  was  going  to  a  port  in  that 
state,  no  measures  would  be  used  to  stop  her,  nor  would  a 
seizure  or  forfeiture  in  this  country  follow.  The  law  of  na- 
tions permits  the  same  thing,  but  the  vessel  may  be  seized 
as  prize,  by  the  surrounding  squadron,  if  taken  in  an  at- 
tempt to  enter.  By  this  is  intended,  that  the  law  of  nations 
attaches  no  illegality  to  the  bare  inception  of  such  a  voyage, 
unaccompanied  by  a  subsequent  attempt  to  enter.  If  it  be 
true,  that  after  the  report  of  a  blockade  reached  Nexv-York, 
the  plaintiffs  might  have  proceeded  without  saying  any 
thing  to  the  company,  their  case  is  greatly  fortified.  The 
increased  premium  which  was  exacted  of  them,  shows  a 
blockaded  port  was  contemplated.  The  assured,  with  good 
faith,  and  to  avoid  a  greater  risk  to  the  other  party  than 
may  at  first  have  been  designed,  immediately  announce  to 
them  the  intelligence  of  a  probable  blockade — and  ask  per- 
mission to  direct  the  Columbia  to  touch  at  Hamburgh.  This 
became  necessary  to  prevent  a  deviation.  Here  was  an  op- 
portunity afforded  to  the  underwriters  of  offering  to  cancel 
the  policy,  *or  of  consenting  to  the  vessel's  going  to  Ham-  #  xv- 

c 


xvii  CASES  IN  ERROR  IN  THE 


ALBANY,     more  admires  the  bold,  eloquent,  and  yet  perspicuous  Ian- 
y..~    — ■>_'    guage  in  which  his  opinions  are  uniformly  given.     In  the 
Vos  and  Giav^s  cases  decided  by  Sir  William  Scott,  the  mind  finds  relief 
Unit.  lr.s.Co.    from  the  fatigue  and  disgust  which  it  contracts  by  a  review 
"  of  the  iniquitous  conduct  of  other  admiralties,  which  pre- 

sent one  uninterrupted  scene  of  rapine  and  oppression.  But 
without  pretending  to  derogate  from  his  character  or  abili- 
ties, I  cannot  think  the  condemnation  of  the  Columbia  au- 
*'  xviii  thonzed  by  the  law  of  nations,  or  the  treaty  *between  the 

two  countries.  It  will  not  be  denied  that  an  attempt  to  en- 
ter a  blockaded  port  is  prohibited  to  neutrals.  Such  inter- 
diction is  inevitable.  Blockades  would  become  idle  cere- 
monies, were  all  the  world  permitted,  as  at  other  times,  to 
enter  the  harbour  and  succour  the  besieged.  The  invest- 
ing foe  therefore  is  permitted  to  interrupt  such  entrance,  and 
to  confiscate  property  taken  in  the  attempt.  But  this 
being  a  right,  in  restriction  of  those  of  neutrals,  who  are  to 
suffer  as  little  as  possible  by  the  hostilities  of  others,  ought 
not  to  be  enforced,  unless  where  a  blockade  actually  and  com- 
pletely exists.  If  the  squadron  be  accidentally  absent  or 
blown  off,  neutrals  are  restored  to  their  rights,  and  exempt 
from  the  penalty,  which  in  the  other  case  they  incur.  Who 
can  say  the  fleet  will  ever  return,  or  the  blockade  be  renew- 
ed ?  If  a  neutral  can  take  advantage  of  this  temporary  sus- 
pension of  the  blockade,'  whether  produced  by  necessity  or 
choice,  he  should  not  suffer  for  the  attempt.  If  the  block- 
ade be  raised,  whether  by  the  appearance  of  a  more  pow- 
erful foe,  or  by  the  act  of  God,  it  no  longer  continues,  and 
the  port  becomes  open  to  all  the  world.  If  superior  force 
confers  a  right  to  impose  on  neutrals  this  restraint,  they  in 
turn,  without  any  imputation  of  fraud,  are  restored  to  the 
privilege  of  a  free  trade,  the  moment  the  ships  are  removed, 
and  have  a  right,  if  they  can,  to  take  advantage  of  such  re- 
movaL  The  Columbia,  it  will  be  remembered,  was  captured 
by  a  vessel  not  belonging  to  the  blockading  division.  Where 
the  squadron  was  at  this  time,  whether  blown  off  or  not, 
does  not  appear ;  at  any  rate,  it  will  be  allowed,  that  Sir 


STATE  OF  NEW-YORK.  xviii 

William  Scott's  interpretation  of  this  right,  as  it  respects  neu-  AL^JJnr» 
trals,  is  very  rigorous.  But,  without  combating  this  con-  s^^^^ 
struction,  we  say,  the  Columbia  ought  not  to  have  been  for-  v 

feited.     To  justify  a  confiscation  for  a  breach  of  blockade,   Unlt  Ins-Co' 
there    should   be  notice    of   its  existence,    an  attempt  to 
enter,  and,  under  the  British  treaty,  a  turning  away,  and 
a  second  attempt  to  go  in.     Sir  William  Scott  admits  the  ne- 
cessity of  a  notice,  and  a  warning  not  to  enter.     Rob.  Rep. 
124.     What  then  shall  amount  to  notice :     Will  a  mere  re- 
port justify  a  master,  who  has  signed  bills  of  lading  for  one 
port,  in  going  to  another  ?     Suppose  his  information  incor- 
rect, and  a  loss  happen,  will  it  not  be  a  deviation  ?     Would 
not  the  owners  and  shippers  in  that  case  lose  their  insu- 
rance, and  he  be  responsible  to  both  ?  The  *obstinacy  of  a 
Danish  master,  in  the  case  of  the  Henric  and  Maria,  men- 
tioned in  the  first  volume  of  Robinson's  Reports,  evinces 
what  was  his  sense  of  duty  in  a  similar  emergence.     Being 
warned  by  an  English  ship  not  to  go  to  a  Dutch  port,  he  an- 
swered, that  "  he  must  proceed  according  to  his  bills  of  la- 
ding, that  he  could  not  answer  to  his  owners  not  to  go  to  any 
place  but  Holland."     In  our  case,  no  such  warning  is  pre- 
tended.    It  is  admitted  by  the  judge,  that  the  Columbia  left 
America  "  with  innocent  intentions  on  the  part  of  the  own- 
ers ;"  for,  says  he,  "  it  was  not  known  at  that  time  in  Ame- 
rica, that  Amsterdam  was  in  a  state  of  investment,  and  there- 
fore  there  is  no  proof  immediately  affecting  the  owners." 
After  this  concession,  we  contend  that  nothing  short  of  be- 
ing turned  away,  could  justify  the  captain  in  not  proceeding 
to  Amsterdam.     A  contrary  rule  would  lead  to  great  embar- 
rassment, and  put  it  in  the  master's  power  to  break  up  a  voy- 
age on  light  rumours,  or  very  imperfect  accounts  of  a  block- 
ade.    If  aught,  short  of  actual  turning  away,  be  sufficient,  it 
should  be  settled  with  precision,  what  species  of  notice  or 
information  shall  justify  a  captain  in  going  to  some  other 
port?     Whether  such  notice  must  proceed  from  one  of  the 
blockading  ships,  or  may  come  from  any  other  quarter  ? 
Whether  such  an  interruption  will  justify  an  abandonment 


xix  CASKS  IN  ERROR  IN  THE 

ALBANY,      to  the  underwriters  ?     And  who  is  to  sustain  the  loss,  the 

1801. 

*  _t~      -v.  '  merchant  or  assurer,  in  case  none  or  a  bad  market  offers  at 
Vos  and  Graves  the  p0rt  into  which  the  vessel  is  compelled  to  go?  To  avoid 

Unit.  ins.  Co.  these  difficulties,  it  is  settled  that  nothing  short  of  an  attempt 
to  enter  justifies  a  seizure.  "  If  I  lay  siege  to  a  place,  or  only 
form  the  blockade,"  says  Vattel,  "  I  have  a  right  to  hinder 
any  one  from  entering,  and  to  treat  as  an  enemy  whoever  at- 
tempts to  enter  the  place,  or  carry  any  thing  to  the  besieged 
without  my  leave."  Vattel,  b.  3.  c.  viii.  s.  117.  A  mere 
intention,  or  sailing  with  such  view,  is  not  sufficient — an  in- 
tention to  commit  an  offence  is  not  punishable.  Sir  William 
Scott  incautiously  considers  "  the  sailing  with  an  intention 
of  evading  a  blockade,  an  overt  act,  constituting  the  of- 
fence." It  would  be  quite  as  correct  to  term  a  preparation 
of  poison,  with  an  intent  to  kill,  an  overt  act  of  murder. 
As  in  the  latter  case,  remorse  or  fear  may  arrest  the  career 
of  the-  assassin  ;  so  in  the  other,  if  the  blockade  is  found  to 

*  xx  exist  when  the  vessel  approaches,  the  master  may  *change 

his  course  without  infringing  on  the  rights  of  the  enemy. 
It  is  important  that  Sir  William  Scott  admits  the  offence 
here,  consisted  only  in  intention.  An  attempt  to  enter,  is 
not  pretended.  This  also  appears  from  the  verdict.  The 
seizure  was  made  on  the  very  day  of  the  Columbians  depar- 
ture from  Cruxhaven.  The  distance  thence  to  Amsterdam 
does  not  appear.  If  it  be  once  granted  that  a  vessel,  the 
moment  of  weighing  anchor  with  an  intention  of  going  to  a 
blockaded  port,  may  be  seized,  as  was  done  here,  where  are 
we  to  stop  ?  If  it  be  rumoured  in  Ncxv-Tork  that  Calcutta, 
Batavia,  or  the  Me  of  France,  be  in  a  state  of  blockade,  shall 
no  vessel  in  the  United  States,  laden  for  either  of  those  ports, 
set  sail  until  its  termination  be  formally  announced  ?  What 
injury  is  done  to  the  powers  at  war,  if  a  hundred  of  our  ves- 
sels sail  with  an  intention  of  going  thither,  and  yet  turn 
away,  if  the  coast  be  not  free  ?  The  fleet  are  stationed 
there  to  prevent  vessels  from  entering.  If  none  attempt  to 
pass,  the  object  of  the  blockade  is  accomplished.  The  Co- 
lumbia s  intention  to  go  up  the  TexeJ  would  not  injure  the 


STATE  OF  NEW-YORK.  xx 

British.  If  they  were  at  its  mouth  they  would  obstruct  her 
course.  If  not  there,  they  had  no  cause  to  complain.  The 
captain  certainly  had  no  design  to  persist,  if  a  blockade  ex-  Vos  and  Graves 
isted.  Take  his  intentions  collectively,  instead  of  forming  Unit  Ins.  Co. 
the  overt  act  which  has  been  mentioned,  they  bespeak  a  per-  — — — — — 
fectly  innocent  conduct  on  his  part.  If  the  fleet  had  disap- 
peared, from  whatever  cause,  before  his  arrival,  with  great 
deference,  I  should  not  think  it  very  criminal  in  captain 
Weeks  to  have  gone  to  Amsterdam.  The  law  of  nations  did 
not  require  him  to  cruise  off  the  Texel,  to  ascertain  whether 
the  blockade  would  be  resumed.  But  the  master  knew  of 
the  blockade  when  he  left  Cruxhaven.  True:  And  "  he 
and  all  the  Americans  there,  understood  it  to  be  the  practice 
of  British  cruisers  to  stop  vessels  bound  thither,  and  send 
them  back,  and  only  to  seize  in  case  of  a  second  attempt  to 
enter,  and  under  this  idea  it  was,  he  sailed  for  Amsterdam." 
Nothing  blameworthy  can  be  inferred  from  this  conduct. 
As  it  regarded  the  underwriters,  he  had  a  right  to  go  to 
Amsterdam,  although  blockaded  ;  such  being  the  true  under- 
standing of  the  parties,  as  is  confirmed  by  the  several  insu- 
rances which  were  effected  in  Nevj-Tork,  after  it  was  known 
the  investment  of  that  place  was  formed.  From  this  may 
be  collected  the  sense  of  our  ^merchants  on  a  point  which.  •  x  t 

has  been  decided  with  so  much  severity  against  them. 
Their  understanding  is,  that  sailing  with  an  intent  to  go  to 
a  blockaded  place,  is  no  cause  of  forfeiture.  As  it  re- 
spected his  owners,  it  was  the  master's  duty  to  be  better  in- 
formed than  he  was  at  Cruxhaven  of  the  situation  of  the 
Texel.  The  reports  there  might  be  ill-founded.  As  the 
voyage  did  not  begin  there,  he  was  right  in  going  on.  As 
it  concerned  the  British,  no  wrong  would  be  done  to  them. 
The  squadron,  if  there,  could  easily  send  him  away ;  if 
not,  their  rights  could  not  be  impaired.  By  the  British 
treaty,  captain  Weeks  was  authorized  to  act  as  he  did. 
He  should  have  been  turned  away,  and  not  seized  until  he 
made  a  second  attempt.  This  was  his  conception  of  the 
treaty,  and  it  was  accurate.     Although  the  obligation  of 


xxi  CASES  IN  ERROR  IN  THE 

ALBANY,     such  warning  be  confined  to  vessels  whose  masters  knew 
v ^^^/S^tm_j  nothing  of  the  blockade  at  the  time  of  sailing,  yet,  as  the 
Vosand  Graves  nature  of  this  knowledge  or  notice  is  undefined,  it  is  the 
Unit.  ins.  Co.   safer  construction  to  say,  that  no  report,  or  any  information 
"~~"  short  of  a  formal  notification  to  foreign  ministers,  which 

usually  takes  place,  shall  be  deemed  sufficient.  But,  re- 
jecting this  interpretation,  it  is  not  alleged  that  the  owners 
knew  of  the  blockade  when  the  Columbia  sailed  from  New- 
York.  The  contrary  is  admitted  by  Sir  William  Scott. 
This  then  being  the  inception  of  the  voyage,  brings  her 
case  within  the  letter  of  the  treaty,  so  that  nothing  short 
of  a  warning,  and  a  second  attempt  to  enter,  should  have 
exposed  her  to  confiscation.  I  forbear  to  make  any  re- 
marks on  the  conclusiveness  of  this  sentence,  as  between 
the  parties  to  this  suit.  As  to  its  direct  effect  on  the  vessel 
and  goods,  it  is  and  will  remain  so.  Were  the  Columbia 
and  her  cargo  now  lying  in  the  harbour  of  New-Tori,  the 
former  owners  could  not  touch  them.  The  purchasers  un- 
der the  decree  would  be  protected.  This  is  going  far 
enough,  and  all  that  is  intended  by  paying  respect  to  foreign 
judgments.  But  in  relation  to  the  assured,  and  assurers, 
who  were  no  parties  to  the  litigation  in  the  court  of  ad- 
miralty, and  who  submitted,  if  sit  all,  ex  necessitate,  to  its 
jurisdiction,  this  court  will  be  compelled,  in  order  to  do 
justice  between  them,  to  examine  the  grounds  of  their  sen- 
tence. The  object  of  the  inquiry  will  be,  not  to  reverse 
it,  to  which  this  tribunal  is  incompetent,  nor  to  disturb  any 
rights  acquired  under  it,  which  would  be  improper,  but  to 
*  xxii  ascertain  how  far  the  causes  *  assigned  were  just,  and  if  so, 

how  the  condemnation  is  to  affect  the  present  question.  If 
captain  Weeks  had  a  right  to  do  what  he  did,  then  this 
sentence  is  unjust,  and  instead  of  a  defence,  it  forms  an- 
other item  or  link  in  our  proofs  of  loss.  But  if  the  sen- 
tence consist  with  the  law  of  nations,  still  we  say  the  un- 
derwriters are  liable,  because  they  insured  us  against  every 
risk  attending  a  voyage  to  a  blockaded  port.  When  the 
reasons  of  a  sentence  appear,  a  foreign  court  will  ever  re* 


STATE  OF  NEW-YORK.  xxii- 

view  them.     This  is  a  rule  so  intelligible  and  fraught  with       ALBANY, 
so  much  plain  and  common  sense,  as  to  be  liable  to  no  mis-     v.  _,_     -1^_/ 
apprehension.     It  may  be  obscured,  as  often  happens,  but  Vos  and  Gruves 
cannot  be   illustrated,  by  an  anxiety  to  amplify  and  eluci-     Unit.  ins.  Co. 
date.     It  is  not  like  the  doctrine  of  a  silent  foreign  sen- 
tence, being  conclusive  between  parties  to  a  policy  in  cases 
of  warranty,  which  now  also  awaits  its  doom  in  this  ho- 
nourable court.     Not  a  hundred  volumes,   not  all  the  law- 
yers in  the  universe,  can  ever  succeed  in  rendering  such  a 
position  intelligible  to  men  of  common  understanding.     It 
requires  a  sublimation  of  genius,  to  comprehend  one  syl- 
lable of  what  is  written  or  said  on  the  subject.     If  Sir  Wil- 
liam Scott,  in  delivering  this  decree,  had  withheld  his  rea- 
sons, every  one  would  have  been  compelled  to  conclude,  as 
in  the  case  of  Goix  and  Low,  that  the  Columbia  was  con- 
demned as  enemy's  property.     The  judge  having  been  more 
communicative  than  usual,  we  are  relieved  from  the  trou* 
ble  of  guessing,  and  the  necessity  of  doing  injustice,  for  in 
this  case  also,  there  was  a  warranty  that  the  property  was 
American,  which  is  admitted  by  the  decree,  or  the  assured 
were  inevitably  gone.     This  court,  we  presume,  will  have 
no  difficulty  in  examining  the  reasons  assigned  for  this  con- 
demnation, and  making  up  a  judgment  of  their  own  on 
them.      Suppose  the   Columbia  had  been  condemned,  al- 
though an  unarmed  merchantman,  w  as  an  article  contraband 
of  war,"  as  was  done  with  die  Calliope  by  one  of  the  West- 
India  tribe ;  would  this  court  hesitate  to  pronounce  such  a 
sentence  a  wicked  departure  from  the  law  of  nations,  or  to 
give  the  owner  the  full  benefit  of  his  insurance  ?  In  a  word, 
the  plaintiffs  contend  that  they  had  a  right  to  go  to  Amster- 
dam, blockaded   or  not.     That  if  they  had  no  such  right, 
the  master  was  not  guilty  of  a  breach  of  blockade.     That 
he  did  only  what  was  permitted  by  the  law  of  nations,  and 
the  British  treaty,  and  that  therefore  in  every   *point  of  *  xxiii 

view  they  are  entitled  to  a  reversal  of  the  judgment  of  the 
supreme  court, 


xxiii  CASES  IN  ERROR  IN  THE 

Troup,  contra,  insisted  the  judgment  ought  to  be  affirm- 
ed.   1.  Because,  by  the  universally  received  law  of  nations, 
Vos  and  Graves  the  entry  of  a  blockaded  port,  or  even  the  attempt  to  enter 

v. 

Unit.  Ins.  Co.    it,   with    a  knowledge   of  its   being   blockaded,  is  a  just 
''  "  ground  for  confiscating  the   cargo,  as   well  as  the  vessel, 

where  they  both  belong  to  the  same  owner.  2.  Because,  it 
cannot  be  presumed  to  have  been  the  intent  of  the  parties, 
that  the  insurance  in  question  should  be  made  to  Amster- 
dam, as  a  blockaded  port ;  for  if  such  had  been  their  intent, 
it  must  have  been  accompanied  at  least  with  an  implied  li- 
cense from  the  defendants  in  error,  to  the  plaintiffs  in  error, 
to  attempt  to  break  the  blockade,  at  the  risk  of  the  defend- 
ants in  error,  if  a  state  of  things  should  be  found  to  favour 
the  attempt ;  and  it  will  be  contended,  that  under  such  cir- 
cumstances, the  insurance  was  void  in  its  commencement, 
as  being  contrary  to  law.  3.  Because,  supposing  the  in- 
surance was  not  intended  to  be  made  to  Amsterdam,  as  a 
blockaded  port,  the  attempt  by  the  master  of  the  Columbia 
to  break  the  blockade,  in  pursuance  of  discretionary  orders 
given  to  him  for  the  purpose,  by  the  plaintiffs  in  error,  who 
were  the  owners  of  the  vessel,  is  not  one  of  those  acts 
of  the  master,  for  which  the  defendants  in  error  are  liable 
in  damages  to  the  plaintiffs  in  error.  4.  Because,  it  clear- 
ly results  from  the  facts  stated  in  the  record  in  this  cause, 
that  Amsterdam  was  a  blockaded  port ;  and  that  the  master, 
with  full  notice  of  its  being  so,  attempted  to  break  the 
blockade.  And  it  will  be  argued  in  behalf  of  the  defend- 
ants in  error,  that  such  attempt  of  the  master  has  dis- 
charged them  from  all  responsibility  to  the  plaintiffs  in 
error. 

Per  Curiam.  The  question  in  this  cause  is,  whether  the 
sailing  of  the  brig  Columbia  from  Cruxhaven  with  a  destina- 
tion for  Amsterdam,  and  an  understanding  that  it  was  block- 
aded, is  a  breach  of  the  blockade,  and  a  legal  cause  of  cap- 
ture and  condemnation  ?  The  question  may  be  qualified, 
perhaps,  with  the  addition  of  an  intention  to  enter  the  TtxttL 


STATE  OF  NEW-YORK.  xxiii 

in  the  event  only  of  the  blockading  squadron  being  blown      ALBANY, 
off  the  coast,  so  as  to  leave  the  port  in  fact  open  for  en-    \,^-^-m^/ 
trance.     There  is  nothing  in  the  verdict,  or  the  assumption  Vos  an^  c,iaves 
of  facts  by  Sir  William  Scott,  as  the  grounds  of  his  deter-     Unit  lns- Co- 
mination,  to  warrant  the  conclusion  of  an  attempt  to  break 
the  blockade,  any  ^farther  than  the  same  is   supported  by  *  xxiv 

proof  of  a  sailing  from  Crux  haven  for  Amsterdam.  Upon 
fundamental  principles,  on  which  our  municipal  code  of 
criminal  law  is  established,  intention,  with  some  very  pe- 
culiar exceptions,  is  not  made  the  subject  of  judicial  ani- 
madversion. That  the  moral  law,  which  arraigns  intention, 
should  be  adopted  in  the  law  of  nations,  with  a  greater  lati- 
tude than  in  our  municipal  system,  is  a  subject  of  some 
surprise,  especially  when  the  application  is  for  the  benefit 
of  belligerents,  and  to  the  prejudice  of  neutrals.  In  inten- 
tion, there  is  nothing  certain  and  permanent  ;  it  is  control- 
led by  every  reflection  ;  is  changed,  dropped,  and  renew- 
ed, by  the  occurrences  of  every  hour  ;  by  the  constant 
vicissitudes  to  which  the  agent  is  subject ;  the  enterprise, 
on  a  nearer  view,  appals  ;  the  locus  penitentlce  is  embraced. 
If  there  is  an  inception  of  the  undertaking,  by  advances  to- 
wards the  theatre  of  action,  (as  the  sailing  from  Cruxhaven 
in  this  instance,)  how  wide  a  space  yet  intervenes !  to  the 
dominion  of  how  many  various  causes  is  the  intention  sub- 
ject, before  the  act  could  be  completed  !  the  information  of 
every  hour  may  change  the  destination  ;  the  receipt  of 
counter-instructions  from  the  owner  may  arrest  further  pro- 
gress ;  the  perils  of  the  sea  overwhelm  ;  the  information 
received  at  Cruxhaven  that  induced  the  sailing,  may  be  con- 
tradicted ;  and,  lastly,  before  the  vessel  may  arrive  on  the 
line  of  investment,  the  blockade  may  be,  by  instructions 
from  the  admiralty,  withdrawn,  or  raised.  The  rule  that 
the  sailing  with  a  destination  for  a  blockaded  port,  is  a 
breach  of  blockade,  as  urged  upon  the  court,  is  undefinable 
in  relation  to  distance  between  the  port  of  departure  and 
that  of  destination,  and  will  produce  great  uncertainty  and 
-exation .     Nothing  is  to  be  found  in  the  verdict  or  facts 


xxiv  CASES  IN  ERROR  IN  THE 

ALBANY,      stated,  or  assumed  in  the  sentence  of  the  admiralty,  from 

-■.  _,_    !,_  /    which  to  infer  the  progress  of  the  brig  from  Cruxhaven  to 

Vos  and  Graves  tne  Texel ;  Sir  William  Scott  meets  her  at  the  threshold,  at 

V. 

Unit.  ins.  Co.  the  port  of  departure,  and  pronounces  the  sailing  with  an 
intention  of  evading  the  blockade,  to  constitute  the  offence : 
these  are  his  words.  It  is  fairly  presumable,  that  the 
ground  thus  taken  by  the  judge,  corresponded  with  the 
proof,  was  as  broad  as  the  evidence  would  justify.  The 
record  in  the  cause  presents  no  fact  to  warrant  a  contrary 
conclusion.  No  inference  is  to  be  made  from  the  plaintiffs' 
communication  by  letter  of  the  27th  June,  that  the  defend- 
*  xxv  ants  ^consented  to  an  attempt  to  enter  a  blockaded  port,  as 

that  letter  closes  with  the  observation,  that  the  blockade 
might  probably  be  withdrawn  before  the  arrival  of  the  ves- 
sel. Therefore  quite  the  contrary  is  rather  to  be  supposed. 
It  is  unnecessary  to  give  an  opinion  on  the  case  of  an  actual 
attempt  to  enter  a  port  during  the  interruption  of  the  block- 
ade, by  reason  of  the  blockading  squadron  being  blown  off; 
as,  in  this  case,  no  such  attempt  was  made,  nor  is  the 
fleet  found  to  have  been  so  blown  off.  It  is  therefore  the 
opinion  of  the  court,  that  there  is  no  authority  of  precedent 
binding  on  it,  to  warrant  the  rule  adopted  by  the  admiralty 
sentence  in  this  cause ;  that  such  rule  is  opposed  to  essential 
principles,  uncertain  in  its  application,  and  highly  vexatious 
to  neutrals ;  that  the  principle  of  the  late  treaty  between 
England  and  Russia  is  more  propitious  to  the  interests  of 
commerce,  and  sufficiently  favourable  to  the  rights  of  bel- 
ligerents, and  merits  high  respect  from  all  neutral  powers. 
Therefore  the  judgment  below  must  be  reversed. 


STATE  OF  NEW-YORK.  xxv 

ALBANY, 

Philip  Urbin  Duguet  against  Frederick  Rhinelander    v^-y-^/ 
and  others. 

IN  error  from  the  supreme  court.     The  plaintiff  (vvho  If  »  belligerent 

emigrate     to    a 

was  also  plaintiff  below)  declared  on  a  policy  of  insurance,  neutral  country 
in  which  both  vessel  and  cargo  were  warranted  M  American  ang  be  there  na- 
property"  The  plaintiff  was  a  Frenchman  by  birth,  who  SSthSS 
emigrated  to  this  countrv  flagrante  hello,  and  was  natura-  |*ty  ls  sul'l>°rted 

°  •    J     <j  by  such  naturah- 

lized  in  1796.     His  ship,  and  that  part  of  her  lading  which  «"»tion,  nor  need 

1  *  °  he  disclose  to  the 

belonged  to  him,  were  condftmnt-d  by  the  Tudge  of  the  underwriter  the 
vice-admiralty  at  Nassau  in  New-Providence,  because  the  emigration, 
plaintiff  "  was,  at  the  commencement  of  hostilities,  and  still 
is,  a  citizen  or  subject  of  the  French  Republic."  A  special 
verdict  having  been  found,  it  was  referred  to  the  court  to 
determine  whether  the  plaintiff  was  entitled  to  recover  as 
for  a  total  loss,  or  only  for  a  return  of  premium,  or  whether 
the  verdict  should  be  entered  for  the  defendants.  Judg- 
ment having  been  given  for  a  return  of  premium,  the  case 
was  brought  up,  on  the  same  points  which  were  made  be- 
low. 1st.  Whether  the  warranty  of  neutrality  was  com- 
plied with  ?  2d.  Whether  there  was  not  an  undue  conceal- 
ment in  not  disclosing  the  period  of  naturalization,  that  the 
underwriters  might  have  calculated  against  *lhe  risk  of  con-  *  xxvi 

fiscation,  for   the   reason   assigned   by    the   sentence  pro- 
mulged  ? 

Per  Curiam.  The  first  question  arising  for  the  consider- 
ation of  the  court,  in  this  cause,  is,  whether  the  plaintiff 
has  verified  his  -warranty  of  American  property  in  the  goods 
insuredP  The  determination  of  this  point  involves  the  im- 
portant question,  whether  the  plaintiff  is  to  be  deemed,  for 
the  purposes  of  commerce,  an  American  citizen.  On  this 
question,  while  the  claims  of  a  state  upon  its  citizens,  when 
surrounded  and  pressed  by  its  enemies,  are  recognised  ; 
while  the  course  to  which  duty  prompts  is  plain,  and  readily 
perceived ;  yet  so  different  are  the  circumstances  of  dif- 


xxvl  CASES  IN  ERROR  IN  THE 

ALBANY,      ferent  states,  so  various  their  policy,  that  the  right  of  citi- 
isoi.  .'  r 

^  ^-  y  -%_/    zens  to  emigrate  during  war,  must,  so  iar  as  respects  the 

P.  U.  Duguet    parent  state,  depend  on  the  particular  ordinances  of  each 
F.  lthindander    individual  community.     What  might  not  be  inconsistent 

and  others. 

_  with  good  policy,  in  a  state  possessed  of  an  overflowing 

population,  and  a  scanty  subsistence,  would  be  quite  dif- 
ferent from  that  of  a  state  with  a  thin  population,  requiring 
all  her  hands  for  defence,  and  with  sufficient  bread  for  all 
her  citizens.  Was  the  condition  of  all  nations  alike  in  this 
respect;  was  the  same  reason  and  necessity  for  prohibiting 
emigration  during  war  common  to  all,  the  rule  contended 
for  by  the  defendants,  would  have  been  long  since  settled, 
as  a  fundamental  principle  of  the  laxv  of  nations,  and  ex- 
pressed in  language  too  unequivocal  to  admit  of  a  doubt,  at 
this  period.  If  a  state  is  assailed  by  external  enemies,  and 
requires  for  defence  the  united  efforts  of  all  its  citizens,  of 
all  that  it  has  given  birth  to,  a  prohibition  against  emigra- 
tion, as  we  have  witnessed  in  France  by  the  ordinances  of 
1704  and  1744,  will  attain  all  that  is  necessary  in  this  re- 
spect, to  the  safety  and  defence  of  the  state.  If  such  pro- 
hibition is  not  interposed,  the  door  is  open  to  emigration- 
But  is  an  emigration,  which  is  lawful  in  relation  to  the  pa- 
rent state,  equally  so  in  reference  to  the  enemy  of  such 
state  ?  As  a  general  rule,  it  is  so.  At  the  same  time, 
should  the  citizens  of  a  belligerent  power,  in  concert  with 
the  state,  or  for  the  purpose  of  multiplying  the  warlike  re- 
sources, or  aiding  the  enterprises  of  the  state,  emigrate  to, 
and  take  a  stand  in  a  neutral  country,  in  order  to  mask 
mercantile  projects  under  a  neutral  flag,  there  can  be  no 
hesitation  in  pronouncing  such  emigration  fraudulent,  and 
that  an  establishment,  and  residence,  for  such  unwarranta- 

*xxvii  ble  ^purposes,  cannot  acquire   to  the  emigrant  a  neutral 

domicil ;  he  still  would  continue  a  member  of  his  native 
family,  and  as  such  must  participate  in,  and  be  affected  by 
the  fortunes  of  the  parent  state.  When  such  a  case  h 
brought  before  the  court,  such  a  determination  will  be  had, 
as  will  preserve  to  the  belligerent  the  full  exercise  of  his 

4 


STATE  OF  NEW-YORK.  xxv'u 

rights  over  the  property  of  its  enemy.     But  because  the  ALBANY, 

right  of  emigration  may  be  abused  in  time  of  war,  it  by  no  ^^y^j 

means  follows,  that  such  right  does  not  exist ;  and  though  P.  u.  Duguet 

it  may  be  difficult  to  detect  and  punish  such  abuses,  the  f.  Rhineiandcr 

J  ,  .    ,  •  ■>         and    others. 

argument  from  thence,  against  the  right,  cannot  prevail. 

As  far  as  appears  from  the  record  in  this  cause,  the  emi- 
gration of  the  plaintiff  proceeded  from  a  common  principle 
of  action  that  prevails  more  or  less  in  all  periods,  and  all 
countries  ;  for  the  subsistence  of  himself  and  his  family,  he 
removed  to  and  acquired  a  domkil  in  this  state.  This  domi- 
cile upon  general  principles,  confers  for  the  purposes  of 
commerce,  the  right  of  an  American  citizen.  Native  En- 
glishmen, domiciled  in  America,  by  a  decision  of  Westmin- 
ster-Hall, participate  in  the  rights  of  American  citizens,  in 
relation  to  trade  between  America  and  the  East  Indies.  It 
will  be  unnecessary  to  consider  whether  the  situation  of  the 
parent  state  was  not  such,  at  the  period  of  the  plaintiff's 
emigration,  as  to  have  no  claims  upon  its  citizens  ;  as  rent 
with  factions  and  violence,  and  yielding  no  protection.  Up- 
on the  point  of  undue  concealment,  raised  in  the  cause,  af- 
ter the  foregoing  opinion,  it  will  be  necessary  only  to  add, 
that  if  the  faith  of  contracts  should  be  deemed  to  have  re- 
quired of  the  plaintiff  a  disclosure  of  his  condition,  as  af- 
fording a  pretext  for  condemnation,  undue  concealment  is  a 
fraud,  odious  in  law,  and  as  such,  not  being  found  by  the 
verdict,  is  not  to  be  presumed.  For  the  foregoing  reason 
the  judgment  of  the  supreme  court  ought  to  be  corrected, 
and  the  judgment  here  be  as  for  a  total  loss. 


John  R.  Livingston  against  William  Rogers. 

IN  an  action  on  a  stock  contract,  the  plaintiff,  to  esta-  parol  evidence 

f  r                  ,  of  the   contents 

blish  a  tender  of  the  stock,  called  on  Gulian  JyrLvers,  who  of  a  letter  of  at_ 

>             i       •          c      i                 C     «.»   ■■■  nm  torney,  may   be 

swore  that  he,  under  the  authority  ol  a  letter  ©t  attornej ,  a(UUxaet])  rf  ll(e 

person  to  whom  it  was  given  prove  it  to  have  been  lost. 


XXVU 


CASES  IN  ERROR  IN  THE 


« 


ALBANY, 

1801. 


XXV1U 


made  to  him  by  the  plaintiff,  with  whose  hand-writing  he 
was  acquainted,  and  attested  by  John  Wilkes,  a  notary  pub- 
J.  It.  Livingston  lie,  *did,  after  due  notice  to  the  defendant,  attend  to  trans- 
W.  lingers,  fer  the  stock,  but  the  defendant  never  appeared.  That  af- 
ter this,  the  letter  of  attorney  was,  by  the  witness,  deposit- 
ed among  some  papers,  and  had  been  since  lost.  John 
Wilkes  deposed,  that  he  never  subscribed  any  letter  of  at- 
torney as  a  witness,  without  seeing  it  first  executed.  The 
plaintiff  then  offered  to  go  into  parol  evidence  of  the  con- 
tents of  the  letter  of  attorney,  but  this  being  overruled  by 
the  judge  who  tried  the  cause,  a  bill  of  exceptions  was  ten- 
dered, on  which  the  case  came  before  the  court.  The  de- 
fendant, in  support  of  the  judgment  below,  relied  on  the 
following  points  :  1st.  That  the  letter  of  attorney,  being  a 
material  link  in  the  evidence,  ought  to  have  been  shown  to 
the  court  and  jury,  that  they  might  determine  on  its  cer- 
tainty ;  and  where  there  is  a  subscribing  witness  to  an  in- 
strument, it  must  be  established  by  him,  if  within  the  juris- 
diction of  the  court,  such  being  the  agreement  of  the  par- 
ties.  2d.  That  the  production  of  deeds  can  be  dispensed 
with,  only  where  they  appear  to  be  in  the  possession  of  the 
opposite  party,  who  has  been  duly  served  with  a  notice  for 
their  production ;  or  where  they  have  been  lost  or  destroy- 
ed, not  by  the  laches  of  the  party  to  be  benefited  by  them, 
but  by  fire  or  other  accidents.  3d.  That  in  the  whole  of 
this  case,  the  conduct  of  the  agent  or  attorney  of  the  plain- 
tiff, must  be  considered  as  that  of  the  plaintiff  himself,  who 
cannot  allege  his  own  or  his  agent's  carelessness,  as  a  rea- 
son for  the  non-production  of  papers  he  was  bound  to  pre- 
serve. 


Per  Curiam.  The  question  upon  the  bill  of  exceptions 
interposed  in  this  cause,  is,  whether  it  be  competent  for  the 
plaintiff  to  give  parol  evidence  of  the  contents  of  the  letter  of 
attorney  to  M'-Evers,  under  the  circumstances  detailed  in  the 
bill  of  exceptions,  or  must  the  instrument  itself  be  produced? 
The  ancient  rule  of  the  common  law  was  highly  rigid  in 


STATE  OF  NEW-YORK.  xxviii 

this  respect.     It  dispensed  with  the  production  of  instru-     ALBANY, 

ments  in  a  few  select  cases,  and  then  only  for  peculiar  and   i  j-      l^i 

specific   causes.     But  experience  under  that  rule,  has,  in  j.  r.  Livingston 

the  progressive  improvements  of  English  jurisprudence,  re-      \y.  Rogers. 

suited  in  a  relaxation  of  the  law  on  the  subject.     The  non-  " 

production  of  instruments  is  now  excused,  for  reasons  more 

general,  and  less  specific,  upon  grounds  more  broad  and 

liberal  than  were  formerlv  admitted.    In  3  D.  £s?  E.  (151.)t  \Keads  Brook- 

man. 
a  declaration  on  a  deed  *was  sustained,  and  the  profert  dis-  *  xxix 

pensed  xvith,  upon  the  general  allegation  of  a  loss  by  time 
and  accident.  In  Beckford  v.  Jackson,  (Esp.  Rep.  337.)  the 
plaintiff  counted  on  a  deed  lost  or  mislaid;  upon  which  issue 
was  taken,  and  the  same  recognised,  as  warranted  in  law, 
by  Lord  Kenyon,  who  presided  at  the  trial.  Other  cases 
are  to  be  found  in  the  English  reports,  of  similar  import, 
sanctioning  the  same  principle.  Upon  the  authority  of 
those  cases,  and  the  reason  of  the  thing,  we  are  of  opinion, 
that  parol  evidence  of  the  contents  of  the  letter  of  attorney 
to  Mr.  M'-Evers,  ought  to  have  been  received,  and  that 
therefore  error  has  intervened  in  this  respect.  Upon  the 
admission  of  such  testimony,  should  the  trial  disclose  evi- 
dence, or  reasonable  grounds  of  suspicion  of  a  suppression 
of  the  instrument,  of  malajides  in  the  plaintiff,  or  should 
the  evidence  of  its  existence  and  legal  efficacy  not  be  clear 
and  satisfactory,  it  will  become  the  duty  of  the  court  to  di- 
rect and  charge  the  jury  for  the  defendant ;  a  venire  farias 
de  novo  must  therefore  be  awarded. 


xxix  CASES  IN  ERROR  IN  THE 

James  Johnston  and  Robert  Weir  against  Daniel 
Ludlow. 

ALBANY,  ERROR  from  a  judgment  of  the  supreme  court,  in  an 

y_^-     '-%_^    action  on  a  policy  of  insurance  on  goods  from  New-York  to 

The  trade  of  a  ^    y       Cruz,     The  instrument   contained   the   following 

domiciled   alien,  " 

carried  en  from  clause  :    "  That  the  property  be  warranted,  by  the  assured, 

the    United  ,  ,  ,  •    i  ■ 

States  with  the  free  from  any  charge,  damage,  or  loss,  which  may  arise  in 

mother  country,  consequence  of  a  seizure  or  detention  of  the  goods  hereby 

deiHhTwa'rran-  insured,  for,  or  on  account  of  any  illicit  or  prohibited  trade, 

ty  against  illicit  •     ,  tracje  }„  articles  contraband  of  war."     From  the  spe- 

trade.      1  o  con  /  l 

stiime  a  breach  cjai  verdict  it  appeared  that  the  plaintiffs,  who  were  the  same 

Ofthat  warranty,  *  l  ' 

the  seizure  must  jn  both  courts,  had  shipped,  besides  the  property  insured, 
illicit,    prohibit-  six  blocks  of  tin,  and  seventy-eight  boxes  of  tin  plates.    That 


hand  °tra^e ";  r  a  the  latter  were  condemned  as  contraband,  and  the  goods  in- 
e^^tiofi1  n"-  surecU  as  belonging  to  the  same  owners,  British  subjects, 
er  pretext    oV  tra.din2  with  an  enemy  to  their   mother  country;  but  that 

u-h   a    trade  is  °  J  J 


sei! 
demi 
flei 
sue 

not  sufficient,  if  the  defendant  knew,  at  the  time  of  subscribing  the  policy, 

the  trade  be  not  #  . 

in  fact  one  or  the  the  plaintiffs  were  subjects  ot  tne  crown  of  Great- Britain, 
tencein  aforeipi  and  that  the  tin  was  on  board.  Judgment  having  been  pro- 
tyU,is°notlneven  nounced  in  favour  of  the  defendant,  the  case  was  brought 
prima  facie  evi-  before  this  court,  and  *"the  following  questions  made  :    1st. 

dence      ot     any  J     * 

fact,  if  there  ap-  \yas  tne  trade,  in  relation  to  the  characters  of  the  plaintiffs, 

pear  in  it  enough  -..,,, 

to  rebut  such"  a  illicit?  2d.  Was  the  articles  of  tin  m  blocks  and  plates  con- 
presumption. 
* 


XXX 


traband  of  war?  3d.  Did  the  warranty  of  the  assured  ex- 
tend in  judgment  of  law  to  a  loss  by  seizure  or  detention, 
merely  because  illicit  or  probihited  trade,  or  trade  in  arti- 
cles contraband  of  war,  was  alleged,  when  in  fact  the  trade 
was  not  such? 

Per  Curiam.  On  the  first  point,  the  domicil  of  the 
plaintiffs  being  established  here  without  any  fraudulent  mo- 
tive, but  for  fair  purposes  of  commerce,  this  court  ought  not 
to  sanction  the  right  of  Great-Britain  to  seize  and  confis- 
cate their  effects,  as  has  been  done  in  this  instance.     The 


STATE  OF  NEW- YORK.  xxx 

case  cited  from  Bosanquet  and  Puller's  Reports,  (page  430.)*  ALBANY, 

which  arose  under  the  article  in   our  late  treaty  with  En-  vs—^v-<w/ 

gland,  regulating  our  East-India  trade,  is  not  inapposite.     In  3-  Jo^ye°i"  h  R' 

that  case,   the  English  court  conceded  to   a  native  subject,  wv- 

"                                                                                 J  D.    Ludlow. 

domiciled  in  America,    the   right  of  an  American  citizen,  in 


relation  to  commerce  with  the  Indies.     On  the  second  point,   /;*,  '„;'/f' 
that  there  may  be  circumstances   and   occasions,   in  which 
tin,  in  blocks  and  plates,  may  become  contraband,  is  not  to 
be  controverted;  but  while  Judge  Kelsall professes  to  detail 
not  only  the  causes   for  condemnation,  but  those  on  which 
he  did  not  ground   himself,  he   does   not   disclose  a  case 
which  would  warrant   the   conclusion,   upon   the  article   in 
question,  of  contraband  of  war.     He  rests  himself  upon  the 
bare  shipment  of  the  article  ;  this  cannot  be   subscribed  to, 
nor  will  the   allowed    effect  of  the  admiralty  sentence,  as 
prima  facie  evidence,  avail  the  defendant  here,  as  the  pre- 
sumption of  facts,  to  warrant   a  condemnation,  is  repelled, 
by  a  detail  of  the  precise  grounds  on  which  the  sentence  was 
pronounced.     On  the  last  point  raised  by  the  underwriters, 
that  the  warranty  protects  him  against  any  loss  by  seizure  or 
detention,  for,  or  on  account  of  any  illicit  trade  or  contraband 
of  war,  nothing  in  this  provision  is  relevant  to  the  case  l^fi« 
fore  the  court.     The  clause  literally  extends  only  to  partial 
losses,  occasioned  by  a  seizure  or  temporary  detention,  un- 
followed  by  a  condemnation  ;  and  if  extended  farther,  it  can- 
not have  been  the  intention  of  the  parties  to  the    policy,  to 
throw  upon  the  assured  a  loss  where  there  could  be  no  fault 
in  him;  when  no  illicit  trade  or  contraband  existed  in  fact, 
merely  because  a  pretext  of  that  kind  is  set  up  to  cloak  the 
condemnation.     The  expression,  ^for  and  on  account  r.f" 
is  not  equivalent  *or  convertible  into  the  words  under  pre-  *  xxxi 

fence  of,  but  may  well  be  understood  to  meaner  the  came 
if;  implying  the  actual  existence  of  either  illicit  trade  or 
contraband,  as  producing  such  loss  or  damage.  No  other 
construction  ought  to  be  admitted,  unless  the  language  of 
the  contract  is  plain  and  unequivocal,  necessarily  inducing  a 


xxxi  CASES  IN  ERROR,  &c. 

ALBANY,       contrarv  interpretation.     The  facts  in  the  cause  do  not,  as 

^*    "'       ,    the  law  is  now  settled  in  Great  Britain,  bear  out  the  con- 

j.  Johns  n&  It.  elusion  of  the  vice-admiralty  court;  nor  can  any  thing  in 

ve,r  the  warranty  of  the  assured  protect  the  underwriter.     The 

P.  Ludlow,     judgment  of  the  court  below  must  be  reversed. 


CASES 


ARGUED  AND  DETERMINED 


COURT  FOR  THE  TRIAL  OF  IMPEACHMENTS 


CORRECTION  OF  ERRORS 


STATE  OF  NEW-YORK 


FEBRUARY  TERM,  lSO-i. 


Teunis  Bergen  and  Michael  Bergen,  Appellants,  and 
Wilhelmus  Bennett,  Respondent. 

THIS  was  an  appeal  from  the  decision  of  his  honour  the  AL^*fT' 
chancellor,  permitting  the  respondent  to  redeem.  The  V^.^^/-^fc/ 
facts  as  they  appeared  from  the  bill,  answer  and  testimony,  Bei'Sen  ^  an°- 
were  these:  on  the  12th  of  April,  1776,  IVil/ielmus  Ben- 
nett, deceased,  executed  to  John  Vanderbilt,  a  bond  for  600/. 
payable  in  one  year,  with  interest  at  5  per  cent,  and,  for  cnntXed  ^in*'"!! 
further  security,  he  also  gave  a  mortgage  on  67  acres  of  ^XfauH  nfb^- 
land,  situated  at  a  place  called  Gowanes.     Shortly  after  this,  mrut' is  ai,mv'r 

'  J  coupled  « nli  m 

on  the  8th  of  November,  1776,  the  mortgagor  died  intestate,  intere*t,and dcva 
leaving  the  respondent  lv  ilhelmus,  then  a  minor  of  fifteen  mortgagor.      if 

years  of  age,  his  eldest  son  and  heir   at   law.     The  usual  recorded  in  the 

.    .  ,.  .  ,     ,  ,  "°('k  for  record- 

ing mortgages,  it  is  a  compliance  with  the  act.  A  sale  under  such  power  is  a  species  of  foiv- 
closure,  and  under  it  a  mortgagee  may  himself  make  a  bona  fide  purchase.  After  a  lapse  of 
sixteen  years  from  the  time  of  such  sale,  known  to  the  mortgagor  or  his  heir,  who  during  that 
period,  has  remained  passive,  a  redemption  will  »ot  be  allowed. 


Bennett. 


I  CASES  IN  ERROR  IN  THE 

ALBANY,       power  to  sell  was  contained  in  the  mortgage,  which,  together 
■with  the  power,  was,  on  the  10th  oi  April,  1777,  registered 


Bergen  &  ano-   in  the  office  of  the  clerk  of  the  county,  in  the  book  for  regis- 

ther  .  _        ,  .  , 

v.  tering  mortgages.     In  the   registry  the   mortgage  was,  as 

cr'"e    usual,  abbreviated ;  but  the  power  was,  though  not  recorded 

as  deeds  usually  are,set  lbrth  in  the  registry  of  the  mortgage, 
*  2  in  hcec  verba,  excepting  as  to  *the  latter  part,  declaring  the 

sale  to  be  a  perpetual  bar,  Stc.  which  was  totally  omittt:d. 
On  the  13th  of  April,  1781,  the  appellant,  Tenuis  Berg  n, 
purchased  the  bond  and  mortgage  for  a  bonajide  consult  ta- 
tion  of  TOO/.  In  1783,  the  respondent  left  Jiis  state  and 
went  to  Nova-Scotia.  On  the  11th  of  March,  1804,  the 
appellant  Teunis  commenced  the  publication  of  a  notice  of 
the  sale  of  the  premises,  under  the  power  contained  in  the 
mortgage.  The  notice  did  not  specify  the  boundaries  of 
the  land  mortgaged.  It  began  on  the  11th  of  March,  1784, 
by  an  advertisement  in  a  weekly  paper,  and  was,  after  the 
first  week,  regularly  continued  in  the  supplement,  which 
was  the  usual  mode  observed  by  the  printer.  1  he  publica- 
tion of  the  notice  appeared,  from  a  file  of  the  papers,  to  have 
been  duly  made,  except  as  to  the  three  last  days  ;  but  for  those 
days  the  paper  or  supplement  was  missing.  A  copy  also 
of  this  advertisement  was,  six  months  previous  to  the  sale, 
fixed  up  on  the  outward  door  of  the  court-house  of  the 
county  in  which  the  lands  lay  ;  and  there  remained  until  af- 
ter the  sale,  on  the  11th  of  September  following.  At  this, 
one  Christopher  Bennett,  a  schoolmaster  in  the  neighbour- 
hood, officiated  as  auctioneer,  in  consequence  of  a  request 
from  the  appellant  Teunis  Bergen.  The  conditions  exhi- 
bited at  the  time  of  sale  were  as  follows  :  "  Brooklyn  Town- 
ship. Articles  of  the  vendue  for  the  sale  of  the  land  and 
meadow  land,  belonging  to  the  estate  of  Wilhelmus  Bennett, 
deceased,  containing  60  acres,  more  or  less,  held  this  11th 
day  of  September,  1784,  by  Teunis  Bergen.  Art.  1.  That 
the  highest  bidder  is  to  have  the  lot  or  parcel  of  land  when 
struck  off  to  him.  2.  That  the  Indian  corn  and  all  the 
planting  produce  thereon  is  to  be  excepted.  3.  That  a 
2 


STATE  OF  NEW-YORK. 


Bennett. 


#  3 


drain  of  ten  feet  wide  for  the  Collick  be  excepted.  4.  That  100     ALBANY, 
raiis  of  the  cross  fence  of  the  corn  be  excepted.     5.  That   iJ^Ly 
the  money  bid  for  the  land  is   to  be  paid  at  the  execution    Bergen  &  ano- 
and  delivery  of  the  writings.     6.  That  in  case   the  person 
or  persons,  to  whom  it  is   struck  off  as  aforesaid,  cannot 
produce  or  procure  a  sufficient  security,  then  and  in  such 
case,  the  same  lot  or  parcel  of  land  shall  be  put  up  again ;  and 
if  the  same  is  then  sold  for  less,  the  first  buyer  shall  make 
up  the  deficiency  ;  if  sold  for  more,  the  first  buyer  shall  have 
no  benefit   by  the  sale."     At  the  time  of  the  vendue,  no 
persons  were  present  but  the  auctioneer,  the  appellants,  one 
C&xvenhoven,  and  a  tenant  who  lived  on  the  land. 

#  There  was  but  one  bid,  which  was  by  the  appellant,  Mi- 
chael Bergen,  for  700/.  and,  after  having  waited  iwo  hours, 
to  see  if  any  person  would  come  and  offer  more,  it  was 
struck  off  at  that  sum  to  him  ;  and  he,  having  attended  to 
purchase  on  behalf  of  the  other  appellant  Teunis,  after  a  con- 
veyance duly  executed  to  him,  reconveyed  to  Tennis. 

It  appeared  that  the  premises  were  not,  at  the  time  of 
sale,  worth  more  than  the  principal  and  interest  due ;  one 
Cowenhoven,  to  whom  the  land  was  offered,  and  who  was 
a  creditor  of  the  mortgagor,  having  declared  he  would  not 
give  the  amount  of  the  bid.  In  1788  the  respondent  came 
back  to  this  state,  and  on  the  3d  of  February,  1800,  filed 
his  bill.  The  respondent  in  support  of  the  decree,  alleged 
in  his  case,  that  the  sale  could  not  bar  the  redemption  for 
which  he  prayed,  as  it  was  null  and  void,  on  the  following 
grounds:  1st.  Because  the  power  to  sell,  contained  in  the 
mortgage,*  "  was  not  recorded  as  deed.s\  usually  arc"  before 
the  execution  of  the  conveyance  to  the  purchaser.  2d.  Be- 
cause the  notice  of  the  sale  was  uncertain,  and  that  the  di- 
rections of  the  statute  were  not  complied  with  in  the  publi- 
cation of  it.  3d.  Because  the  conduct  of  the  appellant 
Teunis  Bergen,  touching  the  sale,  and  the  proceedings  pre- 
paratory thereto,  were  actually  fraudulent.  4th.  Because 
the  power  to  sell,  contained  in  the  mortgage,  expired  with 
the  life  of  the  donor.    5th.  That  the  mortgagee  was  a  trustee 


*  Rev.  Laivs, 
48'2.  5.  6. 
•j-  See  the  act  re- 
lating to  record- 
ing deeds.    Ibid. 
478. 


3  CASES  IN  ERROR  IN  THE 

Al.BVNY,      for  the  mortgagor,  and  as   such,  could  not  be  a  purchaser 
.    irl.  °  1^_  j     ol   the  properly,  which  he  himself  sold  in  that  capa  it). 

Beru:en  &  ano- 

v.  Chancellor.       Mr.  President — The  complainant  has 

filed  his  bill  for  a  redemption ;  to  which  the  deiendant  an- 
swered, and  a  number  of  depositions  have  been  takf  n,  dis- 
closing the  circumstances  stated  in  the  case.  On  th.  se, 
several  questions  have  arisen,  which  have  been  very  fully 
discussed  by  the  counsel  for  the  parties ;  but  ad  of  which, 
the  first  excepted,  relating  to  the  manner  in  which  the 
power  has  been  executed,  must  necessarily  depend  upon  its 
validity  at  the  time  of  such  execution.  The  first  of  these 
questions,  then,  in  the  natural  order  in  which  they  present, 
is,  whether  the  power  contained  in  the  mortgage,  expires 
with  the  life  of  the  mortgagor?  In  the  English  code,  no 
principles  are  to  be  discovered,  which  have  been  applied  in 
their  courts  to  bar  an  equity  of  redemption,  by  the  mere  act 
of  the  mortgagee,  without  the  aid  of  judicial  intervention. 
#  4  This  *device  appears  of  native  growth,  originating  from  the 

circumstances  of  this  country,  and,  probably,  principally  from 
the  disparity  between  the  actual  product,  and  estimated 
value  of  real  estates.  This  may  have  rendered  necessary  a 
move  summary  and  less  expensive  mode  of  barring  the 
equity  of  redemption,  than  that  which  obtained  through  the 
medium  of  chancery,  a  desirable  object.  It  seems  that 
previous  to  the  year  1775,  it  had  been  a  practice  to  intro- 
duce into  mortgages,  clauses  authorizing  a  sale  by  mort- 
gagees, and  that  many  estates  were  then  held  under  such 
1775.  sales.     A  statute  was  passed,  re.iting  this  circumstance,  and 

declaring  that  no  good  and  bona  fide  sales  of  mortgages, 
lands,  tenements,  or  hereditaments,  made  or  to  be  made  by 
mortgagees  or  others,  authorized  thereunto  by  special  power 
for  that  purpose  in  due  form  of  law,  from  him  or  them  who 
had  the  equity  of  redemption,  shall  be  defeated  to  the  preju- 
dice of  the  bona  fide  purchasers  thereof,  in  favour  of,  or  for 
the  advantage  of  anv  person  or  persons  claiming  a  right  of 
redemption  in  equity.  To  this  was  added  a  proviso, 
• 


L.  JV.  T.  480. 


STATE  OF  NEW-YORK. 


ALBANY, 

i8U4. 


thtr 

v. 

Bennett. 


that  this  should  not  prejudice  prior  liens  by  mortgages  exe- 
cuted before  such  sale,  judgments,  or  decrees  in  equity.    This 
statute  saved  the  interest  of  mortgagees  deriving  title  under    Berge:.  &.  ano- 
mortgages  executed  before  such  sale,  and  all  creditors,  "  to 
whom  the  mortgaged  premises,  or  any  part  thereof,  was  be- 
fore bound  by  any  judgment  at  law  or  decree  in  equity." 
It  appears  to  have  been  intended  as  a  declaratory  act,  and  if 
so,  the  proviso  seems  to  contain   a  legislative  declaration, 
that  the  power  to   sell  did   not  irrevocably  rest,  as  a  right 
in  the  mortgagee ;  for,  if  it  did,  the  after  acts  of  the  mort- 
gagor, or  the  judgments  and  decrees  rendered  against  him, 
subsequent  to  the  execution  of  the  power,  could  not  detract 
from  the  right  of  the  mortgagee,  empowered  to  sell;  that  it 
was  intended  they  should,  is  to  be  collected  from  the  consi- 
deration  that  the  word  before,  in  the  latter  clause,  must 
clearly  relate  to  the  sale,  and  not  to  a  period  anterior  to  the 
execution  of  the  power.     But  it  may  be  taken  in  that  sense, 
or  as  intended  for  greater  caution,  and  as  leaving  the  power 
to  be  construed  as  respects  the  cases  excepted,  without  be- 
ing affected  by  the  statute.     In  either  case,  it  cannot  be 
considered  as  affecting  the  question  in  aid  of  the  power. 
The  powers  treated  of  by  Powell,  in  his  admirable  treatise  Powf  on  pa~*" 
on  that  subject,  were,  as  he  states,  originally  mere  modifi- 
cations of  uses,  whatever  was  equitable  in  which,  the  statute 
*of  27  H.  VIII.  transferred  to  law:  thus  he  distinguishes 
powers  in  relation  to  donees,  and  collateral  powers,  as  simply 
relating  to  uses  and  trusts,  and  the  enabling  and  restraining 
powers,  as  mere  branches  from  the  same  generic  trunk. 
I  take  it  therefore  that  the  doctrine  deduced  from  Powell^ 
as  directly  applying  to  the  present  subject,  cannot  be  con- 
sidered as  correct,  and  that  the  principles  by  which  it  is  to 
be  tested,  are  to  be  sought  for  elsewhere.     If  the  power  in  £•• -*£*■  *?•  ? 

'  °  r  Jioli.  Abr.  9.  ci- 

question  was  a  naked  authority,  substituting  the  mortgagee  ted  l -Bacon,  20*- 
or  his  representatives  to  represent  the   person  of  the  mort- 
gagor, it  is  conceded  it  must  expire  with  the  life  of  the  per- 
son creating  it.     But  it  is  insisted,  an  inseparable  connexion 
exists  between  the  power  and  its  object,  the  estate;    that 


5  CASES  IN  ERROR  IN  THE 

ALBANY,       the  duration  of  the  former  must  of  necessity  be  commen- 

1804.  .  J 

K^*^.^,/   surate  with  that  of  the  interest  in  the  latter,  and  that  it  can 

Bergen  &  ano-    only  be  exhausted  by  its  actual  execution ;  or  that  the  power 

v.  is  m   the   nature  of  a  covenant,   running  wim   the    mort- 

a '  gaged  premises.  These  positions  I  shall  consider  sepa- 
rately. As  to  the  first :  If  a  second  mortgage  was  executed, 
intermediate  the  execution  of  the  power,  and  the  sale  under 
it ;  the  second  mortgagee  is  supposed  to  acquire  an  equitable 
lien,  for  the  satisfaction  of  his  security,  on  the  mortgaged 
premises,  if  the  fund  mortgaged  is  more  than  adequate  to 
the  discharge  of  the  first.  An  equity  of  redemption  is  con- 
sidered as  a  subject  to  which  a  lieu  arising  from  a  judgment, 
or  decree,  may  attach.  In  neither  case,  can  the  subsequent 
encumbrances  be  considered  as  united  in  interest  with  the 
first.  On  the  contrary,  their  relative  situations  show  there 
must  always  be  a  collision,  and  frequently  a  direct  opposi- 
tion of  interest.  On  the  footing  of  a  revocation  of  an  au- 
thority, their  situations  are  compatible  with  the  practice 
which  has  prevailed  on  the  subject ;  but  if  the  power  is  con- 
sidered as  an  absolute  vested  right,  the  subsequent  mort- 
gages, judgments,  and  decrees,  must  be  effectually  over- 
reached by  the  sale,  which  must  undoubtedly,  on  that 
ground,  relate  to  the  period  when  the  right  was  acquired. 
The  situation  of  the  mortgagor  and  mortgagee  at  law,  if  the 
authority  is  to  be  tested  by  strict  legal  principles,  operates  , 
against  considering  the  power  as  an  interest  combined  with 
the  estate  granted  ;  for,  to  all  legal  purposes,  the  fee,  upon 
the  execution  of  the  mortgage,  vested  in  the  mortgagee,  sub- 
ject to  the  usual  defeasance.  At  law,  therefore,  the  title 
acquired  by  the   purchase  under  the   power,  could  only  be 

#  5  cumulative ;  and  if  so,  *the  revesting  the  estate,  depending 

upon  the  contingency  of  payment  in  compliance  with  the 
condition,  the  interest  of  the  mortgagee  would  be  destroyed 
by  such  payment,  and  in  either  case  the  power  must  be  ren- 
dered inoperative.  If  such  is  the  situation  of  the  parties  at 
law,  what  reason  can  there  be  for  an  equitable  interposition  ? 
The  principles  that  this  court  pursues  and  cherishes  will 


STATE  OF  NEW-YORK, 
prevent  it  from  relaxing  the  rules  of  law,  unless  it  be  for     ALB\NY, 


the  purpose  of  promoting  substantial  justice.  The  intent  _~-  -»,* 
of  the  parties  has  always  been  permitted  to  have  a  powerful  Bergen  &  auo- 
effect  in  the  construction  of  deeds :  but  though  the  intent  in  v. 

Bennett. 

this  case  to  delegate  to  the  mortgagee,  his  executors,  admt-  ________ 

nlstrators,  and  assigns,  a  power  to  make  a  sale,  is  clearly  to 
be  inferred,  it  does  not  afford  as  satisfactory  an  inference 
that  the  representatives  of  the  mortgagor  were  intended  to  be 
equally  bound  with  himself,  to  continue  that  power ;  and  if 
not,  there  is  no  equitable  principle  on  which  the  power  can 
be  extended  beyond  its  mere  legal  operation.  I  have  not 
been  able  to  discover,  that  ihe  doctrine  contended  for,  that 
the  power  is  to  have  equal  duration  with  the  estate,  has  been 
recognised  in  any  instance  of  this  kind.  Nor  do  I  know  a 
case,  analogous  to  this,  in  the  books  ;  and  from  the  industry 
and  ability  of  the  counsel  who  argued  this  cause,  as  well  as 
mv  own  fruitless  researches,  I  think  I  may  venture  to  say 
that  none  exists.  Wherever  it  rests  in  the  discretion  of  the 
court,  to  give  a  more  liberal  or  restrained  construction  to 
the  acts  of  parties,  it  is  consistent  with  the  principles 
which  regulate  the  conduct  of  this  court,  to  examine  the 
tendency  of  the  several  constructions  which  they  will 
admit,  and  to  mingle  the  inconveniences  of  adopting  one  or 
the  other  of  those  presented,  as  an  ingredient  to  preponde- 
rate the  scale,  otherwise  equally  poised.  By  giving  these 
powers  a  duration  beyond  the  life  of  the  mortgagor,  they 
may  in  many  instances  disinherit  his  heirs  ;  for  here  the 
parol  cannot  be  permitted  to  demur  ;  here  is  no  saving  of  the 
rights  of  an  infant,  till  his  full  age.  The  sale,  if  admissi- 
ble at  all,  must  be  absolutely  conclusive.  By  considering 
the  right  of  sale  as  blended  with,  and  coextensive  in  its  du- 
ration with  the  estate,  subsequent  encumbrances,  by  judg- 
ments, decrees,  and  mortgage,  must  be  completely  at  the 
mercy  of  the  first  mortgagee.  For  if  this  right  is  a  vested 
right,  assimilating  to  that  of  property,  every  sale  under  it 
must  have  a  retrospective  effect,  and  completely  destroy  all 
encumbrances,  intermediate  to  its  acquisition,  *and  the  sale  *  7 


7 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1804. 


ther 

v. 

Bennett. 


under  it.  These  are  consequences  of  great  importance, 
which  I  think  this  court  cannot  countenance  ;  but  on  the 
ino.  contrary  ought  to  resist,  especially  as  the  primary  object  of 
the  mortgage,  the  enabling  the  mortgagee  to  hold  the  land 
mortgaged,  as  a  pledge  for  the  payment  of  the  debt,  is  thus  de- 
feated, to  the'prejudice  of  the  mortgagor's  representatives, 
and  as  devices  calculated  to  bar  the  equity  of  redemption, 
which,  as  susceptible  of  being  wrested  to  oppressive  pur- 
poses, ought  to  be  leaned  against  as  inconsistent  with  the 
original  intent.  Though  this,  I  believe,  is  unexplored 
ground,  I  have  very  little  hesitation  in  saying,  that  from  my 
view  of  the  subject,  the  doctrine  of  irrevocability  cannot  be 
sanctioned.  As  to  the  second  position,  that  this  power  is 
to  be  taken  as  a  covenant  running  with  the  mortgaged 
premises,  there  are  no  words  of  covenant.  It  imports  to 
be  a  new  grant  of  a  power ;  it  is  a  device  intended  to  fore- 
close the  mortgagor,  without  the  intervention  of  judicial  ex- 
amination ;  and,  if  a  covenant,  it  must  become  a  subject  of 
such  examination,  before  it  can  have  complete  effect.  If,  as 
this  clause  is  contained  in  an  indenture,  it  is  to  be  consider- 
ed as  the  words  of  both  parties,  it  might  perhaps  be  con- 
strued a  covenant  at  law,  but  that  would  not  better  the  situ- 
ation of  the  defendant ;  for  the  mortgage  vests  the  estate  in 
the  mortgagee,  and  his  heirs  ;  the  power  is  to  him,  his  ex- 
ecutors, administrators  and  assigns.  This,  if  a  covenant, 
could  not  run  with  the  land ;  for  to  effect  this,  there  ought  to 
be  a  privity  of  estate  between  the  representatives  on  whom 
the  power  and  the  estate  would  devolve  upon  the  death  of 
the  original  parties  ;  here  the  heirs  of  the  mortgagee,  by  the 
limitation  of  the  estate,  would  take  it,  but  the  right  derived 
from  the  power  would  pass  to  the  executor ;  and  thus  the 
instant  the  mortgagee  died,  the  connexion  between  the 
estate  and  the  persons  authorized  to  execute  the  power, 
would  dissolve.  A  stronger  reason  for  not  suffering  it  to 
conclude  the  heirs,  is,  that  the  defendant's  title  originated  in 
a  mere  personal  charge,  and  the  same  reasons  which  have 
already  been  given  against  a  liberal  extension  of  a  power, 


STATE  OF  NEW-YORK.  7 

would  operate  as  forcibly  not  to  extend  the  covenant  by  im-      ALBANY, 
plication.     If,  however,  it  was  to  be  considered  as  a  cove-    v^-^-^y 
nant,  binding  on  the  heir  at  law,   I  should  not  be  disposed    BerSJ£  *  an0' 
to  exert  the  powers  of  this  court,  to  aid  in  concluding  the        Ben*ett 

mortgagor's  representatives,  as  the  estate  is  still  in  the  hands 

of  the  representative  of  the  mortgagee,  by  *giving  efficacy  *  8 

to  the  covenant  here.  It  would  be  contrary  to  what  I  con- 
ceive to  be  the  established  principles  in  this  court,  which  are 
to  endeavour  as  much  as  possible  to  compel  the  parties  to 
adhere  to  the  true  spirit  and  meaning  of  their  original  con- 
tract in  cases  of  mortgages,  the  security  of  the  sum  advanced 
to  the  mortgagor.  Some  other  points,  involving  considera- 
tions of  great  interest,  and  extent,  as  to  the  doctrine  of  mort- 
gages, were  subjects  of  discussion  on  the  arguments  of  this 
cause,  but  thinking,  as  I  do,  that  the  power  contained  in  the 
mortgage  would  not  warrant  the  sale,  it  would  be  useless  to 
travel  through  these  points,  which  merely  relate  to  the  mode 
of  its  execution.  Upon  the  whole,  I  am  of  opinion,  that  the 
complainant  ought  to  be  permitted  to  redeem ;  that  it  ought 
to  be  referred  to  a  master  to  state  an  account  between  the 
parties,  of  the  amount  of  the  principal  and  interest  due  on 
the  mortgage,  the  clear  annual  value  of  the  mortgaged  pre- 
mises, and  the  nature  of  the  improvements  made  by  the  de- 
fendant. 

Bogert,  for  the  appellants.  The  respondent  has  lain  by 
twelve  years  with  the  property  under  his  eyes.  In  that  time 
he  never  makes  any  application  to  redeem.  He  is  silent  till 
the  premises  are  improved  at  an  enormous  expense,  and 
have  risen  greatly  in  value.  This  is  like  waiting  for  a  rise 
in  stock,  after  forfeiture  of  the  mortgage.  2  Atk.  303.*    The  •  Lochmed  v. 

'  .  ,  Jb-wev.     But  had 

lapse  of  such  a  period,  as  in  the  present  case  has   taken  no  interest  bee* 

,  paid  or  demand- 

place,  is,  we  contend,  when  a  person  is  on  the  spot,  an  ac-  «],  the  very  time 

quiescence  in  what  has  been  done.     If  not  that,  at  least  a  fna{}[£  clJ,c,lJ|lli 

laches,  against  which  this  court  will  never  relieve.     It  is  not  ££rlc£*7iSSS 

necessary  at  this  distance  of  time  to  prove  continuance  of  the  ^rgcecl^ur^skn'JJ 

notice  on  the  court-house  door,  and  every  minute  exactitude  necessary.    Seo 

Kivif  v.  Dupine, 
n.  (2).  2  Mk.603. 


CASES  IN  ERROR  IN  THE 
ALBANY,      of  publication.     It  is  enough  to  show  it  generally,  or  even 

1804.  ,  ,  ,.  ,      ,  ,  rr«  ,         • 

once,  as  under  the  absconding  debtors  act.      The  only  m- 


Bergen  &  ano-   termission  in  advertising  is  of  three  days,  and  for  those  the 

v.  papers  are  wanting.     But,  without  them,  the  six  months  are 

complete  ;  for,   in  legal  acceptation,  unless  when  otherwise 

expressed,   a   month  in  a  statute  means  according  to  lunar, 

and  not  calendar  computation.  1  Com,  Dig.  503.  (B.)  1  Black. 

J™*«>*  v.  Lin-  Rep^  450  |     6  JD.  &  £.  224.  J     It  is  sufficient  in  any  notice 

*  Lacon  v.  Iho-  cf  the  kind  in  question,  to  state  the  quantity  of  the  land,  the 
246.  s.  V.     But  owner's  name,  the  township  and  county,  and  the  encumbrance 

if  it  relate  pure-  ,  ,.  . 

]y  to  mercantile  under  which  sold.     A    specification  of  boundaries  would 

t  I*HIlS3Ct  10'IS     tht? 

term  then  means  not»  to  the  community  at  large,  render  it  more  precise, 
^calendar  ^and  ^ne  p0Wer  -ls  not  a  distinct  deed,  but  part  of  a  mortgage, 
month.    There-  #and  must  therefore    be  registered  or  recorded  as  that  is. 

fore,  in  charter-  ° 

parties  it  has  the  I  use  the  words  as   sunonumes,  because  we  find  in  Varices 

calendar    accep-  ..        , 

totion.  Jolly  v.  edit.  p.  3.  of  Appendix,  they  are  used  as  synonymous.  Be- 
Rep-  186.  And  sides,  the  object  of  the  act  is  directed  to  third  persons ;  it 
foreciosr^t  *a  was  framed  for  the  benefit  of  purchasers,  and  not  of  the 
the^omnutation  mortgagor,  except  as  to  that  part  of  the  clause  which  con- 
is   by   calendar  fines   to  persons  of  twenty-five  years  of  age  and  upwards, 

and  not  by  lunar  *  J  J  .   . 

months.  "  Burn,  the  right  of  giving  such  powers.  The  provision  of  having 
Abr.  605. pi.  38.'  the  power  recorded,  before  execution  of  the  conveyance, 

*  9  shows  it  is  meant  only  as  evidence  of  title  in  the  purchaser, 

to  establish  his  irredeemable  right  in  the  land.  The  English 
authorities  demonstrate,  that  with  them,  register  acts  are 
only  for  the  benefit  of  buyers  to  give  notice  of  charges. 
The  preamble  of  our  act  establishes  a  similar  intention  in 
our  legislature.  Therefore  this,  like  all  other  statutes,  is 
to  be  construed  only  with  a  view  to  suppress  the  mischief, 
and  advance  the  remedy.  The  sum  due  on  the  mortgage 
at  the  time  of  sale,  was  924/.  the  refusal  of  Coivenhoven  to 
take  it  at  700/.  does  away  all  charge  of  fraud ;  nor  does  the 
non-attendance  of  persons  at  the  vendue,  afford  room  to  in- 
fer the  existence  of  any ;  the  very  amount  of  the  encum- 
brance might  keep  them  away,  this  being  apparent  in  the 
notice.  As  to  the  power,  that  could  never  die  with  the 
donor.     He  could  not  have  revoked  it  in  his  life.      It  is  an- 


ther 

v. 

Bennett. 


STATE  OF  NEW-YORK.  1 

nexed  to  the  security.     In  the  common  case  of  a  power,      ALBANY, 
accompanying  an  assignment  of  debts  in  satisfaction  of  a    ■>  _,-    -l^__  / 
demand,  it  is  irrevocable  ;*  and  that  which  cannot  be  re-    Ber§;e"K^an0" 
voked,  survives.     It  is  plainly  a  power  coupled  with  an  in- 
terest, and  therefore  runs  with  that  interest.     3  Atk.  7l4.f 
1  Fez,  306.  S.  C.  1  Bac.  Abr.  321.  2  P.  Wms.  120.J    The  \Zf*h\W^ 
injury  which  it  is  apprehended  the  heir  might  sustain,  can  f*eP;  56£-  &  P. 

have  no  weight ;  for,  as  the  ancestor  might  at  once  have   Greenbank. 

°  .   ■     •  *  EUre  v-  Coun- 

sold  absolutely,  so  he  may  order  it  to  be  done  at  a  future  tess  of  Shafts- 

bttTlfm 

day.  He  had  complete  dominion  over  it,  and  had  a  right 
to  bar  any,  or  all  of  his  posterity.  By  the  words  of  his 
contract,  he  has  agreed  to  do  this,  on  the  happening  of 
certain  events.  That  the  mortgagee  is  trustee  for  the 
mortgagor,  is  only  true  sub  modo,  as  to  the  surplus.  But 
allowing  it  to  be  so,  there  is  no  positive  rule  against  a  trus- 
tee's purchasing  the  subject  matter  of  his  trust.  Whether 
the  purchase  will  be  valid  or  not,  will  depend  on  circum- 
stances.     5  Fez.  iun.  678. <S     The  rule,  however,  can  never  §  Campbell  f. 

Walker. 

apply  where  the  trustee  stands  in  the  relation  of  cestui  que 
trust  also.     In  this  situation  a  mortgagee  *must  be  viewed,  #  10 

as  he  is  interested  to  the  amount  of  his  mortgage,  and  bound 
to  take  care  the  estate  is  not  sold  under  the  amount  due 
upon  it.  This  distinction  was  taken  in  the  cases  of  Alaire 
v.  Munro,  and  Le  Roy  v.  Vreeder  et  al.  Besides,  the  sale 
is  under  a  statutory  provision,  meant  to  have  the  effect  of 
a  foreclosure.  This,  therefore,  is  in  some  degree  a  pur- 
chase under  a  judicial  proceeding,  and  had  it  been  before  a 
master  in  chancery,  by  virtue  of  an  order  of  court,  there 
could  be  no  doubt  on  the  subject.  The  present  mode  was 
intended  by  the  act,  to  be  in  lieu  of  a  bill  to  foreclose  ;  it  is 
therefore  attended  with  the  same  consequences.  The  re- 
demption then  ought  to  have  been  sought  within  five  years. 
Lockwood  v.  Ewer,  2  Atk.  303.  A  purchase  by  executors 
of  a  mortgagee,  through  the  intervention  of  a  person  who 
acted  as  trustee  for  them,  was  not  impeached.  Tooke  v. 
Hartley i  2  Bre.  C.  R.  126.  * 


10 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1S04. 


*11 

f  Jason  v.  Ey- 
res, 2  Ch.  C'a. 
33.  Howard  v. 
I/arris,  1  Vern. 
33.  190.  Kilving. 
ton  v.  Gardiner, 
cited  in  Howard 
v.  Harris.  Wil- 
let  v.  JVinnel,  1 
Fmi.  488. 


Hamilton  and  Tompkins,  contra.  The  power  in  the  mort- 
gage has  been  registered  in  the  customary  manner  adopted 
as  to  mortgages  themselves.  The  act  is  specific  that  they 
shall  be  recorded  previous  to  the  execution  of  the  convey- 
ance, w  as  deeds  usually  are."  We  all  know  this  is  in  a 
book  kept  for  the  purpose,  and  in  hcec  verba.  This  too  has 
been  the  practice,  and  communis  error  facit  jus.  It  is  a  co- 
temporaneous  exposition  of  the  law.  The  intent  of  the  le- 
gislature we  cannot  inquire  into ;  we  see  what  they  have 
ordered.  It  would  seem  that  the  legislature  contemplated 
some  mode  distinct  from  that  prescribed  for  mortgages.  It 
is  an  essential  prerequisite  to  the  execution  of  the  convey- 
ance, and  not  to  be  dispensed  with.  The  proceedings  un- 
der the  power  being  in  lieu  of  a  bill  to  foreclose,  it  is  ne- 
cessary strictly  to  adhere  to  every  form,  however  minute. 
Every  compliance  must  be  made  to  appear.  The  deficiency 
of  proof  in  establishing  the  notices  required  by  the  act, 
renders  the  sale  absolutely  void ;  and,  as  the  notice  on  the 
court-house  door  was  cut  from  a  newspaper,  allowing  the 
publication  in  the  paper  to  have  been  for  six  months,  the 
notice  on  the  door  could  not  have  been  affixed  for  that  pe- 
riod. Besides,  it  was  in  a  supplement ;  and  a  supplement 
to  a  paper  is  not  the  paper  itself.  This  exactitude  is  indis- 
pensable, because  the  law  operates  against  a  peculiar  favour- 
ite of  chancery.  A  favourite  so  great,  that  any  clause, 
restraining  the  right  of  redemption,  will  ever  be  set  aside, 
as  repugnant  to  the  original  object  of  the  parties,  and  con- 
trary to  the  nature  of  a  mortgage,  *which  in  equity  is  re- 
garded merely  as  a  security  for  money  lent.f  If  therefore 
it  be  in  a  deed,  it  is  viewed  as  the  result  of  an  undue  in- 
fluence over  the  mortgagor,  arising  from  the  power  which 
a  lender  naturally  has  over  the  person  borrowing.  On  this 
account  no  limitation  of  time,  short  of  twenty  years,  can 
prevent  the  exercise  of  this  right,  which  is  thus  circum- 
scribed, in  analogy  to  ejectments  at  law,  to  preserve  a  uni- 
formity of  practice  in  all  that  relates  to  land.  The  foreclo- 
sure having  taken  place,  is  immaterial,  if  the  property,  at 


STATE  OF  NEW-YORK.  li 

the  time  of  filine  the  bill  to  redeem,  be  worth  more  than      ALBANY, 

1804. 


ther 
v. 

Bennett. 


the  principal  and  interest  due.  A  boundary  i3  as  necessary 
a  description  of  an  estate  as  a  county  or  town  ;  and  the  arti-  BergenV&  ano- 
des of  sale  vary  the  quantity  from  that  mortgaged.  These 
and  the  reservations  of  the  corn,  &c.  tended  to  lessen  the 
value  of  the  premises.  They  form  one  of  many  badges  of 
fraud,  apparent  from  the  conditions  of  vendue,  and  the  ap- 
pointment of  a  schoolmaster  as  auctioneer.  The  mortgagee 
is  a  trustee,  and  emphatically  so  for  the  mortgagor.  It  is 
a  settled  principle  that  a  trustee  cannot  purchase  the  object 
of  his  trust.     2  Eg.  Ca.  Abr.  741.  Holt  v.  Holt.*  1  Ch.  Ca.  *  The  onh -point 

T-  in   that  cwse  re- 

190.  Whaleuv.  WhaleuA  1  Tern.  484.    Whitacre  w.Whita-  latin*  to  trust  is, 

J  J  -        _  that  if  a  trustee 

ere,  Cas.  temp.  King,  15.  61.  Whclpdale  v.  Cookson,  1  Fez.  of  a  term  sur- 
9.  Crowe  v.  Dallard,  1  Fez.  jun.  21S.  Campbell  x.  Walker,  5  ^further'  ten*., 
Fez.  jun.  678  to  682.  Ibid,  ex  parte  Reynolds,  707, 708.  This  ^S^oi01'  the 
last  case,  which  also  refers  to  ex  parte  Hughes  and  ex  parte  ^es^  ^ecS' 
Dumbell,  6  Fez.  iun.  was  this:  An  assignee  under  a  com-  trustee, renewed 

J  a    lease    in    Ins 

mission  of  bankruptcy,  purchased  the  estates  of  the  bank-  own  name,  and 

•  iii  i  i     r  l*     "tor  mortgaging 

rupt  at  auction ;  they  were  ordered  to  be  resold,  Irom  this  \u  assigned  the 

general  principle,  that  an  assignee  could  not  be  a  purchaser,  demotion    to^a 

Here  the  characters  of  trustee  and  cestui  que  trust  were  !^*^e  tode?5f 

united,  vet  held  that  no  purchase  could  be  made,  the  per-  The  trustee  sold 

"■  ■*  l  to  a    purchase? 

mission  of  a  court  of  chancery  being  necessary  to  sanction  with  noticeoftke 

_        ,  i     r  i  original       trust, 

the  transaction.  In  the  case  now  betore  the  court  no  pur-  the  purchase  set 
chase  could  be  valid,  because  the  power  under  which  the 
sale  was  made,  had  determined  by  the  death  of  the  grantor. 
Co.  Litt.  s.  66.  "  If  a  man  maketh  a  deed  of  feoffment  to 
another,  and  a  letter  of  attorney  to  one  to  deliver  to  him 
seisin  by  force  of  the  same  deed,  yet  if  livery  of  seisin  be 
not  executed  in  the  life  of  him  which  made  the  deed,  this 
availeth  nothing."  The  power  was  there  collateral  to  the 
land,  and  so  here;  for  it  goes  to  the  executors  of  the  mort- 
gagee, while  the  land  would  descend  to  *his  hcirs.J  It  +  But  the  heips 
was  therefore  a  mere  lejral  authority,  between  which  and  a  °>"  thc  mori^a- 

o  J  »  gee     would     be 

power  there  is  a  technical  distinction.     These  latter  took  merely  trustees 

*  for    his    execu- 

tors, Ellis  v.  Guavas,  2  Ch.  Ca.  50.      Tabor  r  Graver,  2  V*rn.  367.     Woodetal.  cited  2  Vern. 
1<H.    Turner  v.  Crone,  1  Vern.  lfO. 

a 


Bennett. 


12  CASES  IN  ERROR  IN  THE 

ALBANY,       their  rise  from,  and  were  created  by  the  statute  of  uses. 

180-t 

v^^y-^^  Allowing,  however,  that  the  power  did  survive,  it  ought  to 
Bergen  &  ano-  jiave  keen  strictly  pursued,  and  every  exception  in  the  arti- 
cles exhibited  at  the  time  of  the  auction,  was,  if  not  a  fraud, 
at  least  a  violation.  None  of  the  cases  cited  touch  the  pre- 
sent ;  Lock-wood  v.  Ewer  was  a  case  of  a  mortgage  of  stock. 
The  determination  was,  that  on  such  an  interest  there  was 
no  equity  of  redemption.  In  the  other  case  cited,  there 
had  been  a  lapse  of  thirty  years  after  foreclosure.  Tooke  v. 
Hartley  was  a  case  of  a  lease  for  years,  and  there  the 
foreclosure  had  destroyed  all  privity  between  the  parties. 

Troup  and  Benson,  in  reply*  A  principal  question  is,  have 
the  statutory  provisions  regarding  the  sale  under  the  mort- 
gage been  complied  with?  All  acts  in  pari  materia,  are  to 
receive  a  similar  construction.  The  laws  of  1774,  and  of 
1753,  are  in  pari  materia.  In  that  of  1753,  the  words  re- 
gistering and  recording  are  used  as  synonymous  ;  therefore 
in  that  of  1774s  they  must  be  considered  as  synonymes.  The 
act  is  silent  as  to  the  book  where  these  powers  are  to  be  re- 
corded, and  as  the  provision  must  be  for  the  information 
of  persons  wishing  to  purchase,  convenience  requires  it 
should  be  in  that  book  where  the  mortgages  are  registered. 
The  cotemporaneous  exposition,  and  the  communis  error 
relied  on,  are  in  favour  of  this  position  j  for  by  a  certificate 
from  the  clerk  of  the  county  in  which  the  mortgaged  pre- 
mises lie,  but  one  instance  is  found  of  the  mode  contended 
for  by  the  respondents ;  whereas,  twenty  and  upwards  oc- 
cur of  that  for  which  we  insist.  The  advertising  the  notice 
for  six  months  is  well  proved,  though  the  papers  in  which 
it  appeared  are  missing ;  for  when  written  evidence  is  lost, 
the  resort  is  always  to  parol.  The  exceptions  were  all  in 
favour  of  the  mortgagor,  for  what  was  excepted  now  re- 
mains ;  and  as  to  the  corn,  &c.  the  lands  were  in  the  hands 
of  a  tenant,  who,  though  his  tenancy  was  at  will,  could  not 
be  deprived  of  his  emblements,  on  the  landlord's  determining 
the  tenure.     The  main  question,  however,  for  all  the  others 


STATE  OF  NEW-YORK.  12 

are  but  of  minor  importance,  is,  whether  the  power  to  sell      albani, 
contained  in  the  mortgage,  was  revoked  by  the  death  of  the     ^^^s 
mortgagor  ?     The  rule  is,  that  a  naked  authority  is  revoked    Bergenk  «*. 
by  the  death  of  the  donor ;  but  *an  authority  coupled  with        ^^ 

an  interest,  survives  to  the  donee.  A  naked  authority  is  one   1 

granted  without  consideration,  vesting  no  interest  in  the  do-  *  1 3 

nee,  and  to  be  exercised  for  the  benefit  of  the  donor.  This  is 
the  kind  liable  to  be  revoked  by  him,  and  expiring  on  his  de- 
cease.    The  authority  in  this  case  is  of  a  different  kind.     It 
is  founded  on  a  valuable   consideration  paid,  vests  an  in- 
terest in  the  mortgagee,  and  for  his  benefit  it  is  to  be  ex- 
ercised.    This  is  the  species  which  cannot  be  revoked.     A 
mortgage  gives  a  conditional  estate  in  fee-simple.     To  ren- 
der it  absolute,  it  was  necessary  to  recur  to  chancery.    This 
being  attended  with  expense    and   delay,  was   thought  a 
grievance,  and  to  redress  it,  the  power  of  sale  came  to  be 
inserted.     It  is,  therefore,  nothing  more  than  the  grant  of 
a  special  action  to  compel  payment  of  the  money,  and  this 
for  a  valuable  consideration.     If  a  special  action  or  remedy 
be  given,  it   carries  to  the  donee  an  interest  to  effect  the 
object  of  the  grant,  which  was  here,  to  raise  the  money  due 
to  him  in  a  summary  way.     It  becomes,  therefore,  a  part 
of  the  original  contract,  and  is  parcel  of  the  security  itself. 
As  such,  it  cannot  be  revoked  by  the  donor.     If  it  could, 
he  would  be  able  to  act  against,  and  defeat  his  own. grant. 
From  this  he  surely  ought,  by  his  own  deed,  to  be  estop- 
ped.    As  it  is  purchased  for  a  valuable  consideration,  it 
must  survive  ;  for  no  grant  of  an  interest  to  a  grantee  can 
cease  to  operate  by  the  death  of  the  grantor.     The  mort- 
gage works  as  a  conditional  conveyance  in  fee-simple.    The 
office  of  the  power  is  to  change  the  estate  into  an  absolute 
fee.     Where  an  estate  is  created  with  a  power  to  enlarge 
that  estate,  can  it  be  viewed  in  any  other  light  than  as  a 
part  of  that  estate?      It  is  coexisting  and  commensurate 
with  the  estate;  necessarily,  therefore,  an  authority  coupled 
with  an  interest,  which  of  course  survives.     In  the  position 
cited  from  Co,  Litt.  the  letter  of  attorney  was  to  a  third 


13  CASES  IN  ERROR  IN  THE 

ALBANY,      person,  without  consideration :  here  it  is  to  the  mortgagee 
himself,    purchased  and  paid  for  by  him.      Besides,  the 


Bergen  &  ano-  power  to  give   livery   must,   like   a  warrant   of  attorney 
v.  to  confess  judgment,  be  executed  in  the  name  of  the  grant- 

or; which,  after   he  is  dead,  cannot  be  done.     This  is  not 


the  case  with  the  power  in  a  mortgage ;  for  the  legal  estate 

being  in  the  mortgagee,  the  conveyance  is  in  his  name. 

The  reason  why  it  is  to  him  and  his  executors,  is  because 

the  mortgaged  premises  are  considered  as  personal  estate- 

*  14  The  English  ^jurisprudence  furnishes  nothing  analogous  to 

these  powers.     But  even  under  their  system  it  has  lately 

been  the  practice   to  convey   the  mortgaged   premises  to 

trustees,  in  trust,  after  forfeiture  to  sell  for  payment  of  the 

mortgage  money.     The  principle  with  them  is  the  same  as 

f  But  note  that  with  us,  to  save  the   expense  of  a  chancery  suit.f     Our 

p»w«nof  selling  statute  must  be  so  interpreted  as  to  render  the  sale  it  au- 

"TulouTthl'in.  thorizes  effectual.     If  the  mortgagee  has  not  the  right  to 

teivention  of  a  fairly  purchase,  it  would  be  defeated.     It  is  often  for  the 

court  ef  equity,  J     v 

is  doubted.    See  interest  of  the  morteraeor  that  the  mortgagee  should  buy. 
IPoxv.onMoft.    *,       ,.        ,  ,    ,r    ,  ,        ,         ^       •■  ,    ,      . 

14.  l  Should  only  one  halt  the  money  due  be  offered,  and  he  be 

restrained  from  bidding,  the  person  of  the  mortgagor,  if 

alive,  would   be  liable ;  if  dead  and  insolvent,  must  the 

mortgagee  stand  by  and  lose  his  money  ?     To  impeach  a 

purchase  by  a  trustee,  fraud,  or  making  a  profit,  must  be 

shown.     3  Fez.  jun.  749.  the   chancellor,  speaking  of  this 

rule  against  permitting  trustees  to  purchase,  says,  "  I  do 

not  recollect  any  case  where  the  mere  abstract  rule  came 

distinctly  to  be  tried,  abstracted  from  the  consideration  of 

advantage  made  by  the  purchaser.     It  would  be  difficult  for 

such  a  case  to  occur ;  for,  unless  advantage  is  made,  the 

act  of  purchasing  will  never  be  questioned.     The  rule  is 

laid  down  not  very  correctly  in  most  of  the  cases  where  you 

find  it.     It  is  stated  as  a  proposition,  that  a  trustee  cannot 

buy  of  a  cestui  que  trust.     Certainly  that  naked  proposition 

is  not  correctly  true."     The  full  value  was  given  here,  as 

appears  from  the  testimony.     The  reason  why  redemptions 

of  mortgaged  premises  are  so  much  favoured  in  Englandy 


STATE  OF  NEW- YORK. 


14 


does  not  apply  to  this  country.  Their  lands  are  under  rent, 
and  produce  an  annual  value.  Ours  afford  no  advantage, 
but  from  the  enjoyment  of  the  property  itself.  It  is,  there- 
fore, a  matter  of  easy  calculation,  to  know  when  an  estate 
can  redeem  itself,  and  whether  worth  more  than  the  sum 
due.  To  discharge  land  from  a  mortgage,  we  have  no 
mode  but  by  a  sale  of  the  land  itself.  This  is  contempla- 
ted by  the  parties  at  the  time  of  their  original  contract,  and 
was  the  cause  of  introducing  the  power  now  in  question. 
The  case  cited  from  5  Vez.  jun.  is  not  applicable  to  the  pre- 
sent. An  assignee  under  a  commission  is  not  a  trustee  for 
himself  only,  but  for  others  also :  when  he  purchases,  he 
therefore  will  not  be  permitted  to  exclude  the  other  cestui* 
que  trust  from  the  benefits  which  they  may  have  a  right  to. 
They  say,  "  as  you  purchased  to  save  yourself,  you  must 
do  it  for  us  too."  But  had  the  purchase  *been  on  behalf 
of  all  the  creditors,  it  could  not  have  been  disturbed ;  for 
the  bankrupt,  it  is  to  be  remarked,  was  not  the  party  who 
complained.  A  strong  argument  against  the  decree,  is 
the  impossibility  of  going  into  an  account  of  the  labour, 
improvements,  and  expenses  of  the  mortgagee. 


ALBANY, 

1804. 


Bergen  is.  ano- 
ther 
v. 
Bennett. 


*    15 


Per  Curiam^  delivered  by  Kent,  J.  This  case  comes  be- 
fore the  court  on  an  appeal  from  a  decree  of  the  court  of 
chancery,  that  the  respondent  be  permitted  to  redeem.  The 
reason  assigned  for  the  decree  was,  that  the  power  to  sell 
expired  with  the  life  of  the  mortgagor.  This  doctrine,  if 
sound,  renders  it  unnecessary  to  discuss  any  of  the  other 
points.  If  the  power  was  extinct,  the  sale  was  null,  and 
the  right  of  the  respondent  to  redeem  exists  in  full  force. 
It  is  proper  therefore  to  turn  our  first  attention  to  this  point; 
and,  although  my  examination  of  it  has  led  me  to  a  dif- 
ferent conclusion,  I  have  made  it  with  the  deference  and 
respect  due  to  the  court  which  pronounced  the  decree.  It  Co.  Lite. 
is  admitted  that  a  naked  authority  expires  with  the  life  of 
the  person  who  gave  it ;  but  a  power  coupled  with  an  in- 
terest is  not  revoked  by  the  death  of  the  grantor.     In  my 


Sid.  6. 


15  CASES  IN  ERROR  IN  THE 

ALBVXY,       opinion,  the  power  contained  in  the  mortgage  is  of  the  lat- 
ter description.     A  power  simply  collateral  and  without  in- 


Eergren  &  ano-  terest,  or  a  naked  power,  is,  when,  to  a  mere  stranger,  au- 

v.  thority  is  given  of  disposing  of  an  interest,  in  which  he  had 

enue  t.    ^  no{.  beforej  nor  hath,  by  the  instrument  creating  the  power, 

Vide  Powell  on  any  estate  whatsoever.     But  when  power  is  given  to  a  per- 

J'oiverx,    8     10.  ,  .  l  ?  v 

r2.     Butler's      son  who  derives,  under  the  instrument  creating  the  power, 

note,  29S.  to  lib.  .  r  .  .,,,.. 

s.  of  Co.  Litt.  or  otnerwise,  a  present  or  future  interest  in  the  land,  it  is 

rmi.Hard.  Us!"  tnen  a  Power  relating  to  the  land.  These  last  powers ,  are 
subdivided  into  powers  annexed  to  the  estate,  and  powers 
in  gross.  Both  are  considered  as  powers  with  an  interest, 
because  the  trustee  of  the  power  has  an  interest  in  the  estate, 

Jfardres,  415.  as  well  as  in  the  exercise  of  the  power.  If,  as  one  of  the 
old  cases  expresses  it,  the  person  clothed  with  the  power 
hath  at  the  same  time  an  estate  in  the  land,  the  power  is 
not  collateral,  because  it  savours  of  the  land.  The  power 
now  in  question  answers  exactly  to  this  definition  of  a  pow- 
er with  an  interest,  because  the  mortgagee  has  at  the  same 
time  a  vested  estate  in  the  land,  and  it  does  not  answer  at 
all  to  the  definition  of  a  power  simply  collateral ;  for  that  is 
but  a  bare  authority  to  a  stranger,  who  has  not,  nor  ever 
had,  any  estate  whatsoever.  I  might,  perhaps,  rest  satisfied 
with   giving  this    description  of  the   two    powers,  drawn 

*  16  from  approved  authority;  *but  I  think  the  point  is  suscepti- 

ble of  more  precise  and  definite  illustration.  If  a  man,  by 
his  will,  directs  his  executors  to  sell  his  land,  this  is  but  a 
bare  authority  without  interest ;  for  the  land,  in  the  mean 
time,  descends  to  the  heir  at  law,  who,  until  the  sale, 
would  at  common  law  be  entitled  to  the  profits,  and,  being 
but  a  naked  authority,  if  one  executor  dies,  the  power  at 

Cu.  Litt.  lu.  common  law  would  not  survive. i  But  if  a  man  devises  his 
n.lSl.b.  t»6.  a.  ,      ,  ,  .  ,  '         ,  , 

3     Salh.     ?.7Y.  land  to  his  executors,  to  be   sold,  then  there  is  a  power 

sea,  soi^to  sia  coupled  with   an  interest ;  for  the  executors,  in  the  mean 

time,  take  possession   of  the  land  and  of  the  profits.     In 

this  case,  as  the  estate,  so  also  the  trust,  would  survive  to 

the  surviving  executor.     There  is  a  very  striking  analogy 

y  ■     f  See  the  note  (-2)  of  Mr.  Hargrove  on  this  point,  in  Co.  Litt.  113.  a. 

3 


STATE  OF  NEW-YORK.  1§ 

between  this  case,  of  a  devise  of  land  to  executors  to  be      ALBANY, 
sold,  and  a  mortgage  of  lands  with  a  power  to  sell.     In    \^^\^j 
both  cases,  the  estate  passes  to  the  person  clothed  with  the    Bergen  ^  an0. 
power,  and  in  both  cases  the  power  is  given  in  trust,  to  an-  '  ^fcl* 

swer  a  specific  purpose.  I  cannot  discern  any  distinction 
between  the  cases,  sufficient  to  render  the  power  in  the  one 
instance  naked,  and  in  the  other  coupled  with  an  interest. 
It  is  not  a  power  with  interest  in  the  executors,  because 
they  may  derive  a  personal  benefit  from  the  devise  ;  for  a 
trust  will  survive,  though  no  ways  beneficial  to  the  trustee. 
It  is  the  possession  of  the  legal  estate,  or  a  right  in  the  sub- 
ject, over  which  the  power  is  to  be  exercised,  that  makes 
the  interest  in  question;  and  where  an  executor,  guardian, 
or  other  trustee,  is  invested  with  the  rents  and  profits  of 
land  for  the  sale  or  use  of  another,  it  is  still  an  authority 
coupled  with  an  interest,  and  survives.  It  has  been  thus 
frequently  adjudged.  This  case  also  is  still  more  analo- 
gous to  the  one  of  a  conveyance  of  property  by  way  of 
pledge,  or  in  trust,  with  an  agreement  for  the  mortgagee 
to  sell  in  case  of  default.  This  is  a  practice  known  in  the 
English  law,  and  it  was  taken  for  granted  by  the  lord  chan-  J  PUT* 
cellor,  in  the  case  of  Tucker,  administrator,  v.  Wilson,  that  i'A.    It  was  a 

case  of  absolute 

where  there   existed   such   an  agreement,    the  mortgagee  conveyance     ef 

might  sell  after  the  death  of  the  mortgagor.     It  seems  to  l*ml>l'Ut™hx 

have  been   admitted,  not  to  have  been  competent  for  the  ^j^K 

mortgagorto  revoke  this  authority  to  sell,  because  it  was  ^^J™*^! 

zranted   for  the  benefit  of  the  mortgagee.     He  might  per-  ing  exactly  the 
®  riii  same      """R- 

haps  embarrass  the  execution  of  the   power,  by  a  subse-  z*cbmMd*t.a\ 
.     ,  ,.  i  i      -n  v.  Ewer,  2  *?./-. 

quent  mortgage  or  judgment,  but  the  power  wornd  suit  re-  303- 

main* in  full  force,  although  the  land,  in  the  hands  of  the 
purchaser  under  the  power,  might  become  subject  to  such  -    *  x7 

subsequent  lien.  In  short,  this  power  is  ^altogether  differ- 
ent from  that  of  a  mere  naked  authority :  the  latter  is  no 
better  than  a  letter  of  attorney  given  to  a  stranger  to  the 
estate,  as  in  the  instance  given  by  Coke,  of  a  letter  ot  attor- 
ney to  make  livery  of  seisin.  This  is  revocable  by  the 
grantor  at  his  pleasure  in  his  life-time,  and  is  absolutely  re- 


If  CASES  IN  ERROR  IN  THE 

ALBANY,      voked  by  his  death.     The  grantee  of  such  a  naked  power, 
I_«~804--fc_'   navmS  no  interest  connected  with  the  power,  has,  of  course, 
Bergen  &  ano-    no  interest  affected  by  the  revocation.     The  present  power 
*er  is  in  every   view  distinct  from  the    other.      I  conclude, 

Bennett.        therefore,  that  the  power  to  sell  was  not  revoked  by  the 
i  /mt.  52.  b.        death  of  the  mortgagor,  and  that  the  decree  cannot  be 
supported  on  the  ground  that  was  taken  in  the  court  below. 
I  have  bestowed  some  pains  upon  this  question,  because  I 
am  of  opinion,  that  the  grounds  of  a  definitive  decree  in 
chancery,  resting  upon  what  is  assumed  to  be  a  principle  of 
law,  ought  not  to  be  questioned  and  overturned  without 
much  care  and  consideration.     It  remains  to  see  whether 
any  of  the  other  points,  that  were  raised  by  the  counsel  up- 
on the  argument,  will  bear  out  the  decree.     It  is  contended, 
La-wa  of  jv.  Y.  that  the  power  was  not  recorded  according  to  law.     The  act 
Se1 'fc"f  of  directs,  that  all  powers  to  mortgagees,  for  making  sales  in 
,789,  fee,  shall  be  acknowledged,  proved,  and  recorded  as  other 

deeds  usually  are,  before  the  conveyances  for  the  sale  be  ex- 
ecuted. I  incline  to  think  the  act  was  complied  with.  The 
power  was  regiftered  in  the  book  of  mortgages.  The  sub- 
ject matter  of  the  wnole  act  is  mortgages  ;  and,  in  the  pre- 
ceding part  of  it,  it  speaks  of  deeds  with  a  defeasance  in  a 
separate  writing,  and  of  conditional  deeds,  -^nd  declares  them 
to  be  the  same  as  mortgages.  It  i*  no  vioient  construction, 
therefore,  to  consider  the  words,  recorded  as  deeds  usually 
are,  to  refer  to  mortgage  deeds,  they  being  the  only  deeds 
within  the  purview  and  other  provisions  of  the  act.  These 
powers  also  are  usuall)  contained  in  the  same  deed  with  the 
mortgage,  and  to  register  the  mortgage  part  of  the  deed  in 
one  book,  and  the  power  part  in  another  book,  would  be  in- 
convenient and  idle.  Admitting  the  proper  book  to  have 
been  selected,  the  power  was  well  recorded ;  for  it  was  re- 
corded at  length,  as  far  as  the  mere  powei  in  question  -vent, 
and  nothing  was  omitted  but  the  coveaant  at  tjhe  fori  cf  it, 
declaring  the  sale  to  be  a  perpetual  bar.  P1'.  H  this  be  not 
the  true  construction  of  the  iv:X,  I  am  satisfied  that  even  the 
omission  to  record  the  power  will  not  affect  the  sale.     The 


STATE  OF  NEW-YORK.  17 

only  use  in  recording  it,  is  for  the  benefit  of  the  purchaser,  ALBANY, 

and  *it  does  not  lie  with  the  mortgagor  to  object  to  the  va-  »  _,,-     ^_ « 

lidity  of  the  sale  by  reason  of  that  omission.     He  can  have  Bergen  &  ano- 

J                          '  ther 

no  concern  or  interest  to  be  affected,  whether  it  be  recorded  v. 

.                           .  Bennett. 

or  not.     The  next  objection  is,  that  the  notice  or  the  sale 


was  not  according  to   the  directions  of  the  act.     It  is  al-  *  18 

leged,  that  the  proof  of  the  six  months'  notice  in  the  news- 
paper, and  on  the  court-house  door,  is  not,  as  it  ought  to  be, 
full  and  perfect ;  and  some  nice  criticisms  have  been  made 
upon  its  deficiency.  I  shall  forbear  entering  into  this  exa- 
mination. Considering  the  lapse  of  time  since  the  publica- 
tion was  made,  the  proof  of  the  notice  is  pretty  well  made 
out,  and  every  defect  may  well  be  supplied  with  a  reasona- 
ble presumption.  I  have,  however,  a  short  decisive  answer 
to  the  whole  objection ;  and  that  is,  that  after  a  mortgagor 
or  his  heir  has  lain  by  for  sixteen  years,  he  shall  not  then  be 
permitted  to  come  in  and  question  the  regularity  of  the  no- 
tice. Public  convenience  essentially  requires  that  we  should 
establish  this  principle.  It  would  be  too  rigid  and  severe  to 
exact  all  these  minutiae  of  proofs,  after  such  a  length  of  time. 
It  was  next  urged,  that  the  exceptions  made  and  published 
in  the  conditions  of  sale,  rendered  the  same  void.  The  ex- 
ceptions which  have  been  deemed  as  of  serious  moment, 
(for  I  pass  by  the  exception  of  the  corn  on  the  ground,  and 
the  100  rails,  as  not  requiring  an  answer,)  are,  a  drain  for 
the  collect  of  ten  feet  wide,  and  certain  terms  imposed  on 
the  purchaser,  who  could  not  give  sufficient  security.  I  am 
not  inclined  to  question  the  doctrine,  that  a  mortgagee  is 
bound  to  pursue  his  power  strictly,  and  that,  although  he  Co.  Liu.  113.  a. 
may  sell  part  of  the  land  at  one  time,  and  part  at  another,  Biggcf  wU.  ' 
yet  that  he  cannot  clog  and  encumber  the  part  that  he  sells, 
but  must  sell  simply  and  unconditionally  the  whole  interest, 
as  the  same  was  conveyed  by  the  mortgagor.  I  cannot 
however  intend,  that  this  principle  was  violat  d  in  the  pre- 
sent case.  The  exception  of  the  ten  feet  may,  or  may  not, 
have  been- an  encumbrance  to  the  premises.  It  could  not 
have  been  made,  or  intended  as  a  benefit  to  the  mortgagee, 


18  CASES  IN  ERROR  IN  THE 

ALBANY,      who  became  the  purchaser  ;    for  the  premises,  it  appears, 
-j-1     '      i    were  not  bounded  upon  him.     He  coufd  have  had  no  motive. 
Bergen  &  ano-   For  the  drain  being  excepted  from  the  sale,  would,  if  crea- 
lhver  ted  then  for  the  first  time,  have  remained  in  the  heir  of  the 

Bennett.        mortgagor,  and  it  must  still  remain  his  property.     I  think, 
however,  we  ought  to  intend,  after  this  distance  of  time  at 
least,  that  this  drain  had   antecedently  existed,    and  was 
*  ig  founded  on  usage,  or  was  an  exception   *in  the  previous 

deeds  of  the  land.     It  is  more  probable,  then,  that  exception 
was  put  in  for  greater  caution, and  that  the  mortgagee  himself 
had  taken  the  premises  subject  to  that  exception.     It  would 
be  unreasonable  and  impolitic,  in  my  opinion,  to  disturb 
that  sale  at  this  day,  by  reason  of  a  circumstance  of  such 
small  moment,  as  a  matter  of  fact,  in  which  no  fraud  or  gain 
can  be  imputed  to  the  one  party,  or  real  injury  to  the  other ; 
and  when,  by  fair  intendment,  the  whole  can  be  so   easily 
reconciled  with  strict  principle  on  the  subject.     The  other 
objection  is,  that,  by  the  conditions  of  sale,  unreasonable 
terms  were  imposed  on  the  purchasers,  who  could  not  give 
sufficient  security.     These  sales  at  auction  may  be  insisted 
on  to  be  cash  sales.     The  mortgagee  may  have  his  convey- 
ance ready  to  execute,  and  may  exact  the  money  as  soon  as 
the  land  is  struck  off.     If  he  is  willing,  however,  to  allow 
a  credit  to  the  purchaser,  and  if  he  be  entitled  to  allow  it, 
he  may  then,  no  doubt,  dictate  the  terms  and  extent  of  the 
security,  so  as   the  same  be  not  unreasonable.     If  the  pur- 
chaser is  not  satisfied  with  these  terms,  he  has  only  to  ad- 
vance the  money  which  the  mortgagee  is  entitled  to  demand, 
and  if  offered,  bound  to  receive.     But  whether  the  mortga- 
gee be  entitled  to  sell  upon  credit  and  security,  or  is  in  all 
cases  bound  to  exact  the  money  immediately,  it  is  unneces- 
sary to  decide  ;  because  the  sale  in  question  was  not  a  sale 
upon  credit,  but  a  sale  equivalent  to  a  cash  sale,  since  it  was 
in  reality  a  sale  to  the  mortgagee  himself.     If  he  could  not 
have  sold  upon  security,  but  for  cash  only,  these  terms  that 
were  given  out  were  null  and  void,  and  could  have  had  no 
effect  upon  the  sale,  or  upon  the  purchasers  j  and  if  he  was 


STATE  OF  NEW-YORK.  19 

entitled  to  sell  on  credit  and  security,  I  should  not  consider      AWJJjjNY, 
the  terms  imposed  to  have  been  so  unreasonable,  as  that  the    \^~^^/ 
sale  ought  now  be  set  aside,  from  that  circumstance  alone.    Bergen^  auo- 
I  do  not,  therefore,  consider  these   conditions  of  sale  as        ^^ 

forming  any  solid  ground  for  the   present  bill,  to  set  aside 

the  sale  and  redeem.     Another  objection  to  the  sale  is,  that 
the  mortgagee  was  himself  the  purchaser ;  and  it  is  a  sound 
and  established  rule  of  equitable  policy,  that  a  trustee  cannot 
himself  be  a  purchaser  of  the  trust  estate,  without  leave 
from  chancery ;  and  the  reason   of  the  rule  is,  to  bar  the 
more  effectually  every  avenue  to  fraud.     This  rule  was  re- 
cognised by  this  court  in  the  cause  of  Munroe  and  others  v.  1796. 
Allaire;  but  a  distinction  was  there  taken  between  the  case 
of  a  suit  against  a  trustee,  *to  set  aside  a  purchase,  he  having  *  20 
procured  the  formal  legal  tide,  as  in  the  present  case,  and 
where  a  suit  was  by  him  commenced  to  complete  his  pur- 
chase, as  in  the  case  cited ;  and  it  was  observed,  that  in  the 
former  case,  and  the  observation  is  consequently  applicable  # 
to   the  present  case,  that  equity  would  not  interfere  as  of 
course,  to  set  aside  the  purchase  ;  for  although  equity  will 
not  aid,  it  is  not  bound  in  every  case  to  disturb  such  a  pur- 
chaser.    It  has  also  been  made  a  question,  whether  the  rule 
would  apply  to  the  case  of  a  trustee,  who  was  himself  a  ces- 
tui que  trust,  and  was  obliged  to  purchase,  in  order  to  avoid 
a  loss  to  himself  by  a  sale  at  a  less  price.     But  I  shall  for- 
bear for  the  present  from  giving  any  opinion,  whether  theie 
distinctions  are  well  taken  or  not,  because  the  rule  being  ad- 
mitted to  be  absolute  and  universal,  it  is  still  agreed,  that  the 
cestui  que  trust  must  come  in  a  reasonable  time  to  set  aside  5F~j*>.  680, 
the  sale,  or  he  will  not  be  heard.     What  shall  be  termed  a 
reasonable  time,  is  not  susceptible  of  a  definite  rule,  but  must, 
in  a  degree,  depend  upon  the   circumstances  of  the  particu- 
lar case,  and  be  guided  by  sound  discretion  in  the  court. 
In  this  case,  the  cestui  que  trust  comes  after  sixteen  years, 
finding  it  a  gaining  bargain,  and  being  all  that  time  under 
no  legal  disability     Is  this  coming  within  reasonable  time, 
to  set  aside  a  sale  on  the  ground  of  this  technical  rule  of 


20  CASES  IN  ERROR  IN  THE 

ALBANY  equity  ?    Suppose  the   mortgagee,   instead    of   selling  the 

1804.  lands,  had  entered  into  possession  of  them,  under  the  mort- 

Berffe^k^o-  gage,  and  enjoyed  them  as  his  own :  twenty  years' possession 

the*  m  sucn  a  case  Would  have  been  a  bar  to  a  bill  to  redeem. 

T. 

Bennett.        This  is  a  settled  rule  in  chancery.     And  ought  not  sixteen 

3  P.  Wms.  287.  years'  possession,  after  a  sale  according  to  the  directions  of  a 

3£ro.  64i.  statute,  and  which  is  a  species  of  foreclosure  by  law,  to  be 

esteemed  equal  to  twenty  years'  possession,  commencing  with- 

1  Jiro.  Par.  Ca,  out  such  solemnity  ?  In   the  case  of  Wichulse,  executor,  v. 

414.  2    Eg.  Ca.    „  ,  .  ,  , 

Jlpr.  177.  s.  a    Short,  the  party  came  into  chancery  to  redeem  eleven  years 

after  a  foreclosure,  and  that  too  on  the  ground  of  a  parol 
declaration  of  the  mortgagee,  that  he  was  willing  to  receive 
back  his  money  ;  but  the  court  of  chancery  held,  (and  the 
decree  was  affirmed  in  the  house  of  lords,)  that  the  mort- 
gagor came  too  late  after  a  lapse  of  eleven  years,  and  that  it 
would  be  a  bad  precedent  to  open  the  foreclosure,  as  it 
would  render  the  property,  acquired  under  such  circum- 
stances, extremely  precarious,  and  would  be  attended  with 
mischievous  consequences  to  the  mortgagee,  who,  in  the 
mean  time  relying  on  his  title,  had  improved  the  estate,  and 
$  21  *kept  no  account  of  the  rents  and  profits.     Such  a  practice 

would  shake  an  abundance  of  titles.  In  the  case,  likewise, 
of  Lants  v.  A.  andW.  Crispe,  a  rule  to  redeem  was  refused, 
after  the  mortgagor's  acquiescence  for  six  years,  under  a 
foreclosure  by  his  own  consent,  These  cases  are  certainly 
not  stronger  than  the  present,  and  I  think  the  acquiescence 
of  the  cestui  que  trust  in  the  purchase  by  the  mortgagee, 
and  which  is  necessarily  presumed  from  his  delay,  ought 
now  to  conclude  him.  The  allowing  him  to  redeem,  would 
establish  a  precedent  much  more  impolitic  and  inconve- 
nient in  its  consequences,  than  the  violation,  in  this  case, 
of  the  rule,  that  a  mortgagee  shall  not  purchase.  I  con- 
clude, therefore,  under  the  circumstances  of  this  case, 
none  of  the  objections  raised  are  sufficient  to  justify  the 
setting  aside  the  sale  of  1784,  and  consequently  that  the 
decree  of  the  court  of  chancery  ought  to  be  reversed,  anc| 
that  the  bill  below  to  redeem  be  dismissed  with  costs? 


STATE  OF  NEW-YORK.  21 

John  B.  Church  against  John  Bedient,  Gideon  Kim- 
berly,  and  Walter  Hubbell. 

IN  error,  on  a  bill  of  exceptions  to  the  supreme  court,      On  a  capture 

'  r  *  restoration,  and 

in  an  action  on  a  policy  of  assurance  upon  the  brig  John,  abandonment, 

1  J  ,    ,      ,    ,  j  .the  fact  of  resto- 

valued  at  g5,000.  The  vessel  had  been  captured  on  the  rali0n,  though 
19th  of  January,  acquitted  on  the  20th  of  February,  and  ^"oTaba^don- 
restored  to  the  captain  with  freight  amounting  to  $2,000.  ^f^SfSS 
He  then  refitted  and  repaired  her  at  an  expense  of  only  «™m^c]£™ 
S800,  and  proceeded  on  his  voyage.     On  the  5th  of  March,  The  assured,  un- 

^         '  r  ->  der  such  circum- 

the  assured,  beinc  unacquainted  with  the  restoration  of  the  stances,     being 

r  ,  ,  ,       ^    ,  •        i  i  entitled  to  reco- 

vessel,  abandoned  ;  after  this,  the  John  arrived,  and,  on  a  ver  only  accord- 

.     •  r        i  i      .l  u  ine  to  the  final 

tender  to  the  underwriters,  being  refused  by  them,  she  was  c*enU 

sold  by  the  assured,  who,  with  the  money  in  their  hands, 
brought  their  suit  against  the  plaintiff  for  a  total  loss,  aver- 
ring it  by  capture.  Mr.  Justice  Radcllff,  before  whom  the 
cause  was  tried,  charged  that  as  the  assured  were,  on  the 
5th  of  March,  when  they  abandoned,  ignorant  of  the  fact 
of  restoration,  which  took  place  on  the  20th  of  February 
preceding,  they  had  a  right  to  abandon,  and  claim  for  a 
total  loss  ;  that  being  so  entitled,  they  were  by  law  war- 
ranted in  demanding  the  whole  amount,  without  deducting 
any  thing  for  the  proceeds  of  the  brig.  ., 

Pendleton,  for  the  plaintiff.  The  questions  arising  on  this 
case  are,  whether  an  abandonment  can  lie  made,  after  a 
restoration  *in  fact,  though  the  assured  be  ignorant  of  such  *  23 

fact  at  the  time  of  abandonment  made  ?  Secondly,  whe- 
ther, allowing  the  abandonment  could  be  made,  the  assu- 
red in  this  case  ought  not  to  set  off,  or  deduct  from  his  de- 
mand the  amount  received  from  the  sale  of  the  brig  ?  As 
to  the  first  question,  it  is  to  be  considered  that  a  policy  of 
insurance  is  not  a  contract  against  this  or  that  event,  but 
against  loss.  It  engages  for  nothing  more  than  an  indem- 
nification. If  the  loss  be  total,  the  whole  sum  insured  will 
be  the  amount  of  compensation ;  if  it  be  but  of  a  part,  a 


22  CASES  IN  ERROR  IN  THE 

partial  recompense  only  can  be  demanded.  From  an  equita- 
ble construction  of  the  instrument,  a  loss  is  allowed  to  be 
j  b#  church     total,  when  more  than  half  the  subject  matter  of  insurance 
John  liedient    nas  Deen  destroyed,  or  the  voyage  totally  defeated.     This 
and  others.      iias  given  rise  to  the  doctrine  of  abandonment,  on  making 
of  which  the  property  saved  is  relinquished  to  the  under- 
writer.    If  a  capture  takes  place,  the  uncertainty  whether 
the  whole  will  be  actually  lost  or  not,  admits  of  abandon- 
ing; but  when  the   property  is   released,  this   conclusion 
fails.     When  therefore  it  is  in  the  possession  of  the  owner 
or  his  agent,  the  loss  incurred  is  no  more  than  what  is  paid 
for  its  recovery,  or  in  expenses  on  it.     The  result  is,  that 
while  the  capture  continues,  the  right  of  abandonment  ex- 
ists, and  if  then  made,  the  underwriter  must  pay  the  whole 
amount,  and  take  the  chance  of  the  property  being  after- 
wards recovered.     But  if  the  property  be  restored  previous 
to  abandoning,  then   the  fact  of  loss  has  ceased,  and  the 
only  claim  can  be  for  the  injury  sustained.     It  is  the  fact 
which  gives  the  right  of  abandonment :  if  there  is  no  exist- 
ing fact,  there  can   be  no  right ;  and  if  no  right,  no  aban- 
donment.    The  loss  must  continue  to  the  time  of  abandon- 
ment made.     In  Goss  v.  Withers,  2  Burr.  696.  Lord  Mans- 
field is  made  to  declare,  "  there  is  no  book,  ancient  or  mo- 
dern, which  does  not  say  the  assured  may,   on  a  capture, 
abandon  and  claim  as  for  a  total  loss."     But  on  explaining 
these  very  words  in   Hamilton  v.  Mendez,   2  Burr.  1212. 
his  lordship  says,  "  the  proposition  was  applied  to  the  sub- 
ject matter,"  and  in  pronouncing  the  judgment  of  the  court 
in  this  last  case,  he  lays  down   these  principles :    '*  The 
plaintiff,  upon  a  policy,  can  only  recover  an  indemnity  ac- 
cording to  the  nature  of  the  case  at  the  time  of  the  action 
brought,  or  (at  most)  at  the  time  of  his  offer  to  abandon? 
In  Mills v.  Fletcher,  Doug.  219.  and  Cazalet  v.  St.  Bar  be,  1 
D.  £s?  E.  187.  these  cases  are  referred  to  and  acknowledge 
*  23  ed«     *Roccus,  No.  50.  cited  in  Park,  144.  is  to  the  same 

effect.     So  is  2  Vol.  143.     Nay,  he  thinks  payment  of  the 
money  should  be   the  only  criterion.     In  M<  Masters  v. 
5 


STATE  OF  NEW-YORK.  23 

Shoolbred,  and  Furneaux  v.  Bradley,    Park,  166.  the  same      ALBANY, 
doctrine  is  maintained.     The  right  of  abandonment  cannot    v^^^y 
depend  on  an  erroneous  opinion.     For  the  belief  of  a  fact     J.  B.  Church 
to  exist,  when  that  fact  does  not  exist,  can  never  give  a    John  Bedient 
right  against  the    truth  of  the  case.     It  is  the  final  event  '. 

which  ought  to  regulate  ;  and  if  on  that  it  proves  a  partial 
loss,  the  recovery  cannot  be  for  a  total.  On  the  second 
point,  if  the  abandonment  is  valid,  the  money  received  by 
the  assured  must  belong  to  the  underwriter,  and  be  an  ex- 
tinguishment of  the  defendants'  demand  to  the  amount  of 
the  sum  received.  For  if  insurance  is  a  contract  of  indem- 
nity respecting  a  particular  thing,  and  the  produce  of  that 
thing  be  received  by  the  underwriter,  the  difference  be- 
tween the  produce  received  and  the  value  insured,  is  all 
the  injury  that  can  have  been  sustained.  In  Pr ingle  v. 
Hartley,  3  Atk.  195.  it  is  laid  down  that  the  value  saved, 
if  in  the  hands  of  the  assured,  must  be  deducted  from  the 
recovery  on  the  policy ;  but  if  none  has  come  to  his  hands, 
the  jury  cannot  take  any  notice  of  it.  It  follows  therefore 
that  what  has  come  to  his  hands,  they  must  notice. 

Henry  and  Cables,  contra.     The  effect  of  the  argument 
on  the  first  point  is  to  prove,  that,  though  an  abandonment 
has  been  made  instantly  on  the  knowledge  of  a   capture, 
vet  if  at  the  time  of  abandoning  there  has  been  a  restoration, 
it  does,  though  unknown,  avoid  the  abandonment,  and  the 
assured  can  recover  only  for  a  partial   loss.     An  abandon- 
ment, in  its  very  nature,  contemplates  restoration  or  re- 
covery.    When  all  is  gone,  an  abandonment  is  an  absurdi- 
ty,'* and  therefore  in  cases  of  absolute  total  losses,  an  ac-  «  cambertinq-  *-- 
tion  may  be  brought  for  a  total  loss   without  abandoning.  *££aUt  ~  ***" 
It  is  singular  that  the  existence  of  that,  on  the  supposition 
of  which  the  whole  doctrine  of  abandonment  is  founded, 
should  take  away  the  right  to  abandon.     This  is   to  make 
the  cause  destroy  the  effect.     Abandonment  is  the  exerci- 
sed right  given  to  the  insured  by  his  polity.     It  is  his  exer- 
cised right,  because  not  obliged  to  make  it.     Marsh.  511. 


23  CASES  IN  ERROR  IN  THE 

ALBANY,       513.     On  the  happening  of  the  accident  insured  against,  he 
k^^^.     is  entitled  to  exercise  this  right.     The  contract  of  the  un- 
J.  C.  Church     derwriter  is  to  indemnify  against  certain  perils  and  losses, 
John  Bedient    of  which  capture  is  one.     The  nature  and  effect  of  capture, 
and  others.      js  tQ  jnc]uce  a  prima"  facie  *total  loss,  and  enable   the  assu- 
#  34  red  to  recover  for  such.     3Iarsh.  483..    Goss  v.  Withers,  2 

Burr.  696.  This  arises,  not  only  from  the  words  of  the 
contract,  but  the  reason  of  the  thing ;  for,  on  a  capture, 
all  the  dominion  and  power  of  the  assured  over  the  object 
of  his  insurance  is  gone.  The  spes  recuperandi  does  not 
suspend  the  right  to  demand  for  a  total  loss,  and  complete 
justice  is  done  by  putting  the  underwriter  in  the  place  of 
his  insured.  Per  Lord  Mansfield,  2  Burr.  697.  That  a 
restoration,  prior  to  an  abandonment,  takes  away  the  right 
to  abandon,  proceeds  on  the  idea  of  restoration  constituting 
a  part  of  the  contract.  This  is  not  so.  The  contract  is 
against  the  happening  of  certain  events.  On  the  taking 
place  of  any  one  of  these,  the  contract  is  broken,  and  on 
the  breach  arises  the  right  of  the  assured.  To  argue  that 
a  fact  not  mentioned  shall  heal  this  breach,  is  to  say  that  a 
contract,  broken  on  an  event  contracted  against,  shall  be 
restored  by  an  event  not  contracted  for ;  that  what  is  ex- 
pressed, shall  be  controlled  and  annulled  by  what  is  not  ex- 
pressed, and  this  in  subversion  of  the  maxim  of  de  non  ap- 
parentibus,  et  de  non  existentibus  eadem  est  ratio.  Capture 
gives  the  right  to  abandon ;  all  that  is  required  is,  that  it 
be  asserted  by  the  assured  speedily,  and  so  soon  as  he  re- 
ceives the  information  of  his  loss.  Mitchell  v.  Edie,  1  D. 
&?  E.  608.  Marsh.  510,  511,  512.  Alrvoodv.  Henkle,  ibid. 
513.  When  thus  asserted,  it  has  relation  to  the  period 
when  the  accident  happened.  Marsh.  519.  Without  this 
construction,  the  right  of  abandonment  would  be  perfectly 
illusory.  Suppose  a  capture  in  the  East  Indies,  and  the 
vessel  carried  into  Calcutta.  Six  months  may  elapse  before 
information  of  the  event  is  received.  Must  another  six 
months  pass  over  before  the  assured  can  be  certain  of  his 
right  ?     It  is  the  capture,  or  casus,  which  gives  it  him. 


STATE  OF  NEW-YORK. 


24 


Election  and  notice  are  assertions  of  that  right,  which  ren- 
der it  vested  in  him,  and  absolutely  change  the  property  to 
the  assurer,  whose  agent  the  assured  from  that  instant  be- 
comes. The  effect  of  election,  as  to  the  vesting  of  rights, 
is  not  confined  to  cases  of  insurance  ;  it  is  to  be  traced  in 
every  part  of  our  law.  If  a  contract  be  dependent  on  an 
agreement,  and  the  party  for  whom  intended  disagree,  it 
can  never  after  be  affirmed.  WhelpdaWs  case,  5  Rep.  119. 
For  where  a  right  is  vested,  nothing  but  the  act  of  the  par- 
ty can  devest  it.  If  A.  is  in  execution  at  the  suit  of  B.  and 
/.  S.  desires  B.  to  let  A.  go  at  large,  and  he  will  satisfy  the 
debt,  to  which  B.  ^agrees ;  though  /.  S.  before  any  thing 
done  in  pursuance  of  this  promise  and  agreement,  comes  to 
B.  and  tells  him,  that  he  revokes  his  promise,  and  that  he- 
will  not  stand  to  it ;  yet  such  revocation  cannot  be  pleaded 
in  bar  to  the  action.  1  Roll.  Air.  32.  The  reasoning  is, 
that,  by  the  election  to  accept  the  offer  of  /.  *S*.  a  complete 
right  vested  in  B.  on  the  contract  of  /.  S.  So  here,  the, 
contract  of  the  insurer  is  for  a  certain  sum,  to  pay  on  a  cer- 
tain event,  if  the  insured  elect  to  demand.  On  this  elec- 
tion made,  every  ingredient  for  a  perfect  vested  right  oc- 
curred. There  was  the  consideration,  in  the  premium  j 
the  promise,  in  the  contract ;  the  breach,  on  the  accident  i 
the  right,  on  the  election  duly  noticed.  On  the  sacrednesa 
of  vested  rights,  those  of  property  in  a  great  measure  de- 
pend. A  contingent  remainder  may  be  destroyed  whilst 
contingent ;  but  the  instant  it  vests,  the  act  of  the  party  is 
necessary  to  affect  it.  After  breach  of  the  condition  of  a 
bond,  the  tender  of  principal  and  interest,  and  refusal  by 
the  obligee,  cannot,  by  the  common  law,  be  pleaded  in  baf 
to  the  action.  Under  hill  v.  Mathexvs,  Bull.  N.  P.  171. 
Because  the  breach  vested  the  right.  The  only  restriction 
©f  the  right  to  abandon  is,  "  that  when  information  of  the 
loss  reaches  the  assured,  they,  must  make  their  election, 
whether  they  will  abandon  or  not."  Per  Buller,  J.  in 
Mitchell  v.  Edie.  Hamilton  v.  JSLndes  proves  only  that 
the  assured  cannot  abandon,  when  the  information  of  cap- 


ALBANY, 

1801. 


J.  B.  Church 


*  22 


25  CASES  IN  ERROR  IN  THE 

ALBANY,       ture  is  accompanied  with   information  of  restitution  and 
k"  ■  ■ 

safety.     The  case  was  nothing  more  than  an  equitable  ex- 


J.  B. Church-    position  of  the  contract  of  insurance,  made   in  the  same 

John  Bcdient    spirit  as  that  which  influenced  our  legislature  in  the  act  for 

thef  amendment  of  the   law.     For,  as  this  was  passed  to 


t  i  Rev.  Laws,  soften  the  rigour  of  the  common  law   on  a  breach  of  the 
&E9.  .         . . 

condition  in  a  bond,  so  the  judgment  in  that,  was  to  tem- 
per the  strictness  of  legal  construction  on  policies  of  in- 
surance, in  cases  exactly  similar,  and  is  no  further  applica- 
ble. It  is  a  mitigation  of  strict  insurance  law  ;  it  qualifies 
the  right  bythe  knowledge  of  the  fact  of  restitution.  If  the 
insured,  at  the  time  of  abandoning,  is  ignorant  of  any  fact 
that  can  restrain  or  qualify  his  election,  it  must  be  con- 
sidered as  made  in  pursuance  of  the  right  arising  from  the 
capture.  To  test  the  right  to  abandon,  by  the  facts  in  the 
knowledge  of  the  assured  when  the  abandonment  is  made, 
is  the  best  rule.  First,  from  the  nature  of  the  right.  It  is 
to  transfer  the  property  to  the  insurer  for  its  value,  that  he, 
*  26  as  the  insured  *has  lost  his  dominion  over  it,  might  pursue 

his  own  course  for  its  recovery,  and  not  be  liable  to  be 
called  on  for  average  losses  incurred  by  the  conduct  of  an- 
other. Secondly,  from  its  end.  It  is  to  encourage  com- 
merce ;  to  enable  the  party,  without  any  encumbrance  from 
the  difficulty  of  recovery,  to  be,  at  the  end  of  thirty  days 
after  proof  of  loss,  in  possession  of  his  funds,  and  employ 
them  in  other  mercantile  adventures.  Thirdly,  this  end  is 
defeated,  if  any  hope  be  left  in  the  insurer  to  convert,  by 
delaying  to  acquiesce,  the  total  into  a  partial  loss.  If  the 
facts  known  at  the  time  of  abandonment,  are  not  made  the 
criterion  of  the  right  to  abandon,  advantages  are  given  to 
the  insurer  over  the  insured.  The  latter  is  bound  to  make 
his  election  immediately ;  the  former,  after  delay,  and 
finding  the  state  of  the  market,  would  acquiesce  or  not,  ac- 
cording as  prudence  and  interest  might  dictate.  The  opi- 
nion of  Valin,  in  his  2d  vol.  pages  143, 144.  has  been  cited  as 
to  the  effect  of  subsequent  events,  on  a  prior  abandonment; 
-but  in  the  notes  to  a  former  page  in  the  same  volume,  he 


STATE  OF  NEW-YORK.  2Q 

himself  cites  a  French  decision,  to  the  contrary  of  what  he      ai .BANY, 
lays  down.     Emcrigon,  a  weightier  and  more  recent  au-    v--k ^^^, 
thority,  in  his  2d  vol.  c.  17.  s.  6.  answers  the  points  insisted     j.  B,  Church 
on  by  Valin,  and  is  clearly  against  them.     Where  a  person    John  Bedient 
has  been  legally  authorized  to  act,  what  he  does  in    virtue  "^Hl_ 

of  that  authority,  though  after  it  has  determined,  cannot, 
\ibona  fide,  and  without  knowledge  of  the   determination, 
be  on  that  account  impeached.     A  conveyance  under  a  let- 
ter of  attorney  revoked,  is  good,  if  without  notice  of  revo- 
cation.    To  permit,    in  the  present   case,  the  subsequent 
fact  of  restitution  to  invalidate  the  abandonment,  will  be  to 
affect  with  notice  when  a  want  of  knowledge  is  confessed. 
The  state  of  things  at  the  time  of  suit  brought,  has  been 
mentioned  by  Lord  Mansfield,  as  showing  it  must  influence, 
from  analogy  to  the  cases  of  actions  for  waste,  and  against 
sureties.     In  the  first  instance  relied  on,  the  repairing  be- 
fore suit  brought,  is  a  bar,  because  there  must  be  a  view  to 
judge  of  the  waste,  which,  by  the  reparation,  is  rendered 
impossible.      5  Rep.  119.  Wlielpdale's  case.     But  even  then 
it  must  be  specially  pleaded.     1  Inst.  282.     With  regard  to 
suits  against  sureties,  the  casus  foederis  is  indemnity  alone. 
But  this  very  point  relied  on  in  the  argument  of  this  day,  by 
die  opposite  counsel,  was  urged  and  decided  in  the  case  of 
Storey  v.  Brown,  cited  in  5  Bro.  Pari.  Ca.  139.  in  notis.    1  he 
vessel  was  insured  to  Gibraltar,  for  *vvhich  place  she  was  *  27 

chartered.  She  arrived  there,  was  captured,  proceeded 
against,  and  restored  to  the  captain,  who  went  on  another 
voyage  in  her.  In  an  action  against  the  underwriter,  he 
relied  on  there  having  been  no  total  loss,  and  the  restora- 
tion to  the  captain  as  the  agent  of  the  insured,  and  by  him 
sent  on  another  voyage.  But  it  was  answered  that  the  cap- 
ture at  Gibraltar  was  a  breach  of  the  policy,  and  the  plain- 
tiff had  judgment  for  a  total  loss.  After  capture,  the  mas- 
ter is  the  agent  of  the  underwriter  ;  a  restoration  to  him  is 
therefore  a  delivery  to  the  underwriter,  and  this  can  never 
defeat  a  right  of  the  underwritten.  The  same  point  was 
determined  in  the  supreme  court  of  this.state/  in  the  case 


25T  CASES  IN  ERROR  IN  THE 

ALH^NY'      °*"  Murray  v.  United  Insurance  Company ;  and  in  Slocum  & 

V^-^^-^^/    Burling  against  the  same,  it  was  thought  so  clear,  that  the 

' ,.  ulrc       counsel  for  the  defendant  did  not  attempt  to  argue  it.     In 

Jand  SheST*    **"s  iast  Case'  tlle  vessel  was  in  Port  wnen  tne  action  was 

'■*  •■ brought.     On  the  second  point,  we  do  not  deny  that  the 

amount  of  the  proceeds  of  ihe  vessel  belongs  to  the  plaintiff, 
nor  that  the  defendants  are  trustees  for  him  ;  but,  under  a 
plea  of  the  general  issue,  he  can  have  no  advantage  of  it. 
Under  that,  nothing  can  be  received  in  evidence  but  pay- 
ment, Bull.  N.  P.  152, 153.  unless  notice  of  set-off  had  been 
given  under  the  statute. 

ffarison,  in  reply.  The  engagement  of  the  contract  of 
insurance  is  not  to  pay  the  full  amount  of  the  policy  on  the 
happening  of  any  one  of  the  events  contracted  against.  It 
is  to  indemnify  for  the  damage  of  that  occurrence.  Were 
it  otherwise,  there  could  be  no  partial  losses.  It  is  not 
therefore  correct  to  say,  whenever  an  accident  happens, 
there  is  a  vested  right  to  claim  for  a  total  loss  ;  for  the  ques- 
tion instantly  arises,  what  is  the  extent  of  the  injury  in  con- 
sequence of  the  accident  ?  Most  certainly,  when  there  is  a 
calamity  which  creates  a  total  loss,  there  is  a  breach  which 
gives  that  vested  right  insisted  on.  But  the  question  on 
every  accident  is,  is  it  an  average  or  total  loss?  and  this  is 
always  a  subject  of  legal  consideration.  Whatever  does 
not  go  to  the  total  destruction  of  the  voyage,  is  an  average 
loss.  Marsh.  506.  Thus,  temporary  detentions  and  re- 
pairs are  average  losses,  and  on  payment  of  the  expenses 
incurred,  the  contract  is  complied  with.  Detention,  and 
capture,  as  a  species  of  detention,  may  be  total  losses,  but 
then  they  are  only  technically  so,  and  when  they  no  longer 
continue,  cannot  be  so  considered  by  the  insured.  He  can- 
hot,  when  this  artificial  loss  is  done  *away,  act  upon  it  as 
a  total  loss  which  abides  for  ever,  and  abandon  by  force  of 
the  casus,  when  the  casus  is  passed.  The  right  of  aban- 
donment, in  cases  of  technical  loss,  must  depend  on  the  fact 
of  its  existing  when  the  abandonment  is  made.     This  dgc- 


*  88 


STATE  OF  NEW-YORK. 


25 


trine  cannot  be  inconvenient  in  its  application  ;  if  any  con- 
siderable delay  take  place  by  the  capture,  it  will  always  fur- 
nish time  to  abandon  whilst  it  lasts.  On  the  contrary,  if 
every  little  interruption  is  to  enable  the  assured  to  turn  the 
loss  on  the  underwriter,  it  will  open  a  wide  door  to  fraudu- 
lent practice.  The  cases  in  Great  Britain,  and  even  in  the 
supreme  court,  are  not  authority  here  ;  for,  it  is  against 
that  very  authority  we  now  apply.  This  is  the  highest 
branch  of  our  judicature,  and,  as  the  point  has  never  before 
been  here  agitated,  it  is  open  for  determination.  In  ma- 
king it,  the  English  books  furnish  but  few  decisions ;  for  the 
first  case  on  the  subject  of  abandonment,  is  that  of  Gess  v. 
Withers,  in  1757.  It  however  confirms  our  positions,  and 
expressly  lays  down,  that  "  no  capture  by  the  enemy  can 
be  so  total  a  loss  as  to  leave  no  possibility  of  recovery." 
The  authorities  adduced  by  the  associate  counsel  who 
opened  this  case,  all  show  the  loss  must  continue  to  the 
time  of  abandoning,  and  perhaps  to  that  of  action.  The 
case  from  Browrfs  Pari.  Rep.  was  on  a  wager  policy,*  and 
in  them,  as  there  is  no  interest,  there  cannot  be  any  aban- 
donment. The  mere  accident,  therefore,  on  a  wager 
policy,  gives  that  vested  right  which  has  been  so  strongly 
insisted  on.  Pringle  v.  Hartley,  is  decisive  on  the  second 
point. 


ALBANY, 

1804. 


J.  B.  Church 
v. 

John  Bedient 
and   others. 


*  It  does  not  ap^; 
pear  so  from  the 
case,  unless  the 
words  "  valued 
at  the  sum  insur- 
ed," will  create 
a  wager  policy, 
for  which,  nei- 
ther in  J'ark  nor 
Marshall,  do  I 
find  an  authori- 
ty. 


The  case  of  Hallettv.  Peyton,  standing  next  in  order,  and 
embracing  the  same  point  as  to  abandonment,  the  court  de- 
clined pronouncing  judgment  till  that  should  be  argued. 


Richard  S.  Hallett  against  Henry  Peyton. 


THIS   case  also  came  before  the  court  on  a  bill  of  ex-  s.  p.  asthepi-e- 

„,         ,  ,     f  ceding  ease. 

ceptions.     The  points  relied  on  were,  1st.  1  hat  the  seal  ot 


•2tf  CASES  IN  ERROR  IN  THE 

ALBANY,  a  foreign  vice-admiralty  court  was  not  in  itself  any  .evi-' 
K^-^s~*+~>/  dence  ;  but,  to  make  it  so,  required  testimony,  on  oath, 
K.  S.  ilaiiett     authenticating  both  the  seal  and  the  signature  of  the  judge. 

II.  Peyton.  2d.  That,  of  the  certificate  of  registry,  parol  testimony 
could  not  be  received,  it  being,  under  the  act  of  congress, 

*  29  a  record.     The  third  was  as  to   abandonment,  *~and   the 

same  as  in  Church  v.  Bedient,  the  next  immediately  prece- 
ding case. 

Pendleton,  for  the  plaintiff.  It  is  unnecessary  to  argue 
one  of  the  exceptions,  because  the  judge  against  whose  opi- 
nion the  bill  was  sealed,  has  acknowledged  that  he  erred  ia 
admitting  parol  proof  of  the  existence  of  the  register.  The 
second  is  of  the  utmost  importance.  Upon  this  we  con- 
tend that  the  papers  adduced  could  not  be  legal  evidence, 
unless  accompanied  by  proof  which  would  authenticate  the 
seal  of  the  court,  and  hand  of  the  judge,  or  show  that  the 
condemnation  was  a  true  copy  of  the  original  sentence.  It 
may  not,  perhaps,  be  requisite  to  establish  by  witnesses,  the 
contents  of  papers  under  the  seal  of  a  foreign  court,  and 
under  the  hand  of  the  judge  who  presided  in  it,  as  to  the 
facts  which  took  place  in  such  court ;  because  it  may  be  pre- 
sumed that  no  judge  would  put  his  signature  to  an  untruth. 
But  whether  it  be  his  signature  and  the  seal  of  his  court, 
must  be  authenticated  by  testimony.  The  reason  why  seals 
of  any  courts  are  evidence,  is  because  our  own  judges  are 
presumed  to  be  acquainted  with  them.  This  presumption 
is  not  extended  to  foreign  tribunals,  nor  to  their  laws,  which 

*  Roehtiimk  v.  must  be  proved.*  To  allow  foreign  seals  to  prove  them- 
&sp.  58.  '  '  selves,  would  open  a  wide  field  to  fraud.  In  a  case  in  Es- 
f  Wright  \.  Par-  pinavse,-]  want  of  seaworthiness  was  not  allowed  to  be  proved 
nctrd,  '2  hap.  i oo.  ^  a  COpy  0f  a  survey.     The   act  of  congress,  regulating 

the  manner  of  authenticating  records  of  judgments  in  sister 
states,  is  a  high  legislative  authority,  to  show  a  seal  of  a  fo- 
reign court  cannot  be  received  in  evidence,  without  proof  of 
its  being  actually  the  seal  of  such  court.  Were  it  otherwise, 
the  act  would  have   been  needless.     If  this  is  the  case  in 


STATE  OF  NEW-YORK. 


28 


ALBANY, 

1804. 


*  30 


regard  to  seals  of  the  courts  of  the  different  states,  it  cer- 
tainly will  a  fortiori  be  so  in  regard  to  seals  of  foreign  ad- 
miralty tribunals.     Even  in  Great  Britain,  the  seals  of  their 
inferior  municipal  courts   must   be   proved,   for  they  are 
not  in  themselves  any  evidence.     Gilbert's  Laxv  of  Evid.  by 
Loft,  22.  shows  that  seals  of  inferior  courts  must  be  proved 
bv  the  oath  of  some  persons  to  whom  they  are  known.     In 
Olive  v.  Gxvin,  Hard.  118.  the  seal  of  the  grand  sessions  in 
Wales  was  held  no  evidence,  though  the  grand  sessions  is  a 
court  established  by  act  of  parliament.  So  in  Green  v.  Fronde, 
1  Mod.  117.  an  exemplification  of  a  recovery  in  ancient  de- 
mesne, was  held  inadmissible  without  proof.     An  exempli- 
fication under  the   public  seal  of  a  foreign  city  was  reject- 
ed,  *when  offered  to  establish  the   entry  of  goods  at   the 
custom-house.      The  King  v.  Mason,  8  Mod.  75.      Nay,  in 
Henry  v.  Adey,  3  East,  221.  it  was  held,  that  proving  the 
hand-writing  of  the  judge  was  not  sufficient  in  an  action  on 
a  judgment  rendered  in  Grenada,  but  that  the  seal  ought  also 
to  be  established.     If  this  strictness   will  be   required  in 
England  respecting  the   seal  of  a  court  in  one  of  her  own 
colonies,  we  ought  to  be  still  more  strict  here.     In  Bernar- 
ds v.  Motteux,\  the  court  refused  to  allow   the  proceedings  t  Doi<3-  5& 
of  a  foreign  admiralty  court  to  be  read,  unless  by  consent. 
The  reason  is  evident ;  they  were  not  authenticated.     We 
do  not  say  the  papers  adduced  shall  in  no  case  be  evidence  ; 
we  only  insist  they  must  be  substantiated,  on  oath,  as  copies 
of  other  writings  are,  when  the  originals  cannot  be  pro- 
duced, and  if  produced  would  be  evidence.     The  true  cri- 
terion as  to  seals  of  courts  is,  that  where  the  law  presumes 
them  known  to  the  judges,  they  preve  themselves ;  where 
not,  they  must  be  proved.     The  point  of  abandonment  has 
already  been  argued  in  the  preceding  cause  ;  if  on  that  we » 
are  correct,  the  judgment  in  this  case  must  be  reversed, 
however  the  court  may  think  on  the  other  exceptions. 

Cables,  contra.     As  the  questions  now  made,  come  before 
the  court  on  a  bill  of  exceptions,  it  may  not  be  amiss  to  ad- 


30  CASES  IN  ERROR  IN  THE 

ALBANY,       vert  to  the  nature  of  this  mode  of  proceeding.     Injury  tri- 

v_i—     -t '    a'si  when  a  party  denies  a  fact,  he  controverts  it  by  evidence 

Tt.  S.  H:iUett  which  goes  to  the  jury.  When  he  admits  a  fact  to  exist, 
H.  Peyton,  but  says  it  is  not  substantiated  in  the  manner  required  by 
law  to  prove  the  issue,  he  excepts  to  the  evidence,  by  insist- 
ing it  cannot  at  that  time,  or  in  that  way,  be  offered  to  the 
jury  in  support  of  the  fact  in  issue.  When  a  fact  is  admitted* 
and  also  that  it  is  duly  substantiated,  and  a  party  contends 
that  though  the  fact  is  true,  and  well  proved,  the  inferences 
from  it  do  not  in  point  of  law  maintain  the  issue,  he  de- 
murs to  the  evidence.  From  hence  it  appears,  that  on  a 
bill  of  exceptions,  the  person  tendering  it  supposes  the  evi- 
dence true,  but  questions  the  competence  or  propriety  of  it. 
Money  v.  Leach,  3  Burr.  1765.     Therefore  the  facts  it  con- 

*  This  may  per-  tains  can  never  afterwards  be  disputed.*     Show.  Pari.  Ca. 
haps  be,  because  j  20<     Bridgman  and  others  v.  Roxvland  Holt  and  others.     It 

it  is  an  acknow-  c, 

ledgment  on  re-  follows  also,  (though  the  remark  is  not  required  by  the  pre- 
sent case,)  that  on  a  demurrer  to  evidence,  the  court  may 
make  any  and  every  inference  which  a  jury  might  have 
drawn.     Cocksedge  v.  Fanshazv,  Doug.  131.    134.     Here 

#  31  then  the  capture,  *the  condemnation,  and  the  seal,  are  con- 

fessed, but  the  reception  of  them  in  evidence  is  denied,  for 
want  of  being  duly  authenticated.  The  question  then 
arises,  whether  a  seal,  purporting  to  be  a  seal  of  a  foreign 
court  of  admiralty,  shall  be  prima  facie  evidence  without  pa- 
rol testimony  of  the  seal  and  the  signature  of  the  judge  ?  As 
conclusive,  it  was  not  offered.  As  prima  facie,  it  was  open 
to  be  rebutted :  it  is  only  in  case  this  is  not  done,  that  it 
becomes  of  any  avail.  But  its  reception  is  argued  against, 
from  the  danger  of  fraud  to  which  it  would  expose,  as  seals 
and  signatures  might  be  counterfeited  for  every  occasion. 
It  may  be  answered  that  the  difficulty  of  manufacturing 
seals,  papers,  and  proceedings,  with  all  the  formulas  of  judi- 
cial niceties,  would  be  insurmountable;  and  if  they  could  be 
overcome,  the  circumstance  of  an  oath,  in  this  age  of  depra- 
vity, would  be  no  obstacle  to  their  authentication.  The 
danger  then  of  fraud,  is  not  one  atom  diminished  by  the 


STATE  OF  NEW-YORK. 


31 


precaution  intended.     The  keystone  of  this  reasoning  is  laid     ALBANY, 
upon  the  idea  of  fraud  ;  a  supposition  that   the  law  never     v_n-    '-^_f 
allows  to  be  made.     So  little  is  it  countenanced  by  any  au-     r.  s.  Hallett 
thority,  that  it  is  laid  down  in  2  Bac.  Abr.  (new  edit.)  600.      H  peyt0n. 

a  seal  is  better  evidence  than  an  oath.     The  rule,  however, —— — 

with  respect  to  other  foreign  judgments,  has  been  relied  on, 
and  a  train  of  authorities,  which  it  is  not  meant  to  dispute, 
have  been  cited,  to  show  not  only  the  seal  of  the  court  where 
pronounced,  but  the  hand  of  the  judge  who  presided,  must 
be  substantiated.  One  word  will  suffice  for  all  these.  They 
were,  excepting  the  case  from  Espinasse,  which  was  a  nota- 
rial copy  of  a  ship-carpenter's  survey,  cases  of  judgments  in 
municipal  and  local  tribunals,  proceeding  according  to  a  par- 
ticular code  of  partial  and  confined  jurisdiction.  The  courts 
of  law  are  therefore  not  supposed  to  be  conusant  of  the 
seals  oifora,  acting  under  a  system  which  they  do  not  ac- 
knowledge. This  is  not  the  case  here.  Courts  of  admi- 
ralty are  held  in  all  countries  under  one  and  the  same  law, 
the  law  of  nations,  equally  in  force  in  all.  The  reason  on 
which  a  judge  of  the  supreme  court  is  supposed  to  know  the 
seal  of  a  court  of  common  pleas,  is,  that  each  is  a  court  of 
the  same  jurisprudence  ;  acting  under  the  same  system,  on 
the  same  principles,  and  its  jurisdiction  running  in  the  same 
country.  Wherever  the  jurisdiction  is  acknowledged,  the 
seal  of  the  court  is  supposed  to  be  known.  If  then  it  can 
be  shown,  that  what  takes  place  in  a  foreign  court  of  admi- 
ralty, is  recognised  and  ^available  of  here,  by  process  under  *  52 
the  seal  of  such  court,  it  follows  that  such  seal  must  sub- 
stantiate itself.  In  1  Roll  Abr.  530.  pi.  12.  this  is  said  to  be 
the  law  :  "  If  a  Frizlander  sue  an  Englishman  in  Frizland 
before  the  governor  there,  and  recover  against  him  a  cer- 
tain sum  of  money,  which  the  Englishman,  not  having 
enough  to  satisfy,  comes  into  England,  upon  which  the  go- 
vernor sends  his  letters  missive"  (xvhich  are  always  under 
seal)  u  into  England,  asking  all  the  magistrates  within  the 
kingdom  to  cause  execution  of  the  said  judgment ;  the  judge 
of  the  admiralty  may  execute  that  judgment  by   imptison- 

K 


32  CASES  IN  ERROR  IN  THE 

ALBANY,       ment  of  the  party,  and  he  shall  not  be  liberated  by  the  com- 
<^  _^y     mon  law.     For  it  is  according  to  the  law  of  nations  that  the 
It.  S.  Hallett     justice   of  one  nation  shall  be  aiding  to   the  justice  of  the. 
H.  Peyton.       other,  and  the  one  execute  the  judgment  of  the  other:  and 
"  the  law  of  England  takes  notice  of  this  law,  and  the  judge 

of  the  admiralty  is  the  proper  magistrate  for  that  purpose, 
for  he  only  has  execution  of  the  civil  law  within  this  realm. 
Wier's  case  resolved  upon  a  habeas  corpus,  and  he  remand- 
ed." It  is  evident  that  in  this  case,  the  authority  of  the  im- 
prisonment, which  was  founded  on  the  letters  missive,  must 
have  been  before  the  court.  No  mention  is  made  of  the 
manner  in  which  they  were  substantiated.  So  in  Jurado  v. 
r  S.  C.  1  Vent.  Gregory,  I  Sid.  41 8. f  "Where  sentence  is  obtained  in  a 
32,  foreign  admiralty,  one  may  libel  for  execution  thereof  here, 

because  all  the  courts  of  admiralty  in  Europe  are  governed 
by  the  civil  law,  and  are  to  be  assistant  one  to  the  other, 
though  the  matter  were  not  originally  determinable  in  our 
court  of  admiralty."  This  case  shows  how  fully  admiralty 
jurisdiction  extends  over  all  civilized  countries.  It  marks 
too  the  distinction  between  judgments  in  those  courts,  and 
judgments  in  foreign  municipal  tribunals.  In  the  admiralty, 
a  libel  maybe  filed  for  execution  here,  of  a  judgment  abroad, 
in  the  same  manner  as  an  action  may  be  maintained  on  a 
judgment  in  the  supreme  court,  to  obtain  the  benefits  of  it 
without  examining  into  the  merits  on  which  it  was  ren- 
dered. As,  then,  the  jurisdiction  of  the  law  of  nations  is  ac- 
knowledged here,  the  courts  of  admiralty  act  under  that  ju- 
risdiction. The  seals  of  these  courts  must  be  supposed  to 
be  known  here,  like  the  seals  of  all  other  courts  proceeding 
under  the  same  authority.  But  it  is  not  merely  the  seals 
of  courts  under  the  law  of  nations  that  are  received  as 
evidence j  the  seals  of  the  officers  of  that  law  are  equally 
*  33  #good  testimony.     The  seal  of  a  foreign  notary  public  is  evi- 

dence. Wherever  the  jurisdiction  of  a  court  runs,  its  seal 
requires  no  evidence  to  prove  it.  Judgments  in  the  courts 
of  the  United  States,  are  therefore  evidence  when  under  the 
seal  of  the  court  where  pronounced,  without  proving  the  seal 


STATE  OF  NEW-YORK. 


33 


or  signature   of  the  judge.     In  Jenkins  v.  Silas  Pepoon, 
debt  was  brought  on  a  judgment  rendered  by  the  district 
court  of  the  United  States,  for  the  district  of  Massachusetts. 
On  a  plea  of  nui  tiel  record,  the   plaintiff's  counsel  offered 
an  exemplification  of  the  judgment  under  the  seal  of  that  " 
court.     It  was  objected   on  the  part  of  the   defendant,  that 
the  act  of  congress  respected  only  judgments  of  state  courts  ; 
that  it  did  not  provide  for  the  admission  of  judgments    in 
the  courts  of  the  United  States ;  that  therefore  proof  should 
be  made  of  the  seal,  or  of  the  matters  exemplified.     The 
court,  however,  admitted  the   record   unanimously,  on  the 
principle  that  it  was  a  court  of  general  jurisdiction,  its  seal 
therefore  to  be  noticed  by  all  courts,  as  carrying  in  itself  evi- 
dence of  its  own  genuineness.      Against  the  reasonings  on 
behalf  of  the   plaintiff,  the   argument  from  inconvenience 
alone  would   be   irresistible.     Suppose   a   capture,  and  the 
vessel  condemned  in  Bombay ;  after  the  proceedings  have 
beeen  transmitted  here,  must  they  be  sent  back  under  a  com- 
mission to  be  identified  ?  The  delays,  risks  of  miscarriage, 
and  expense,  would  be  intolerable.     Another  reason  may 
be  assigned  why,  in  the  present  case,  the  seal  need  not  have 
been  proved.     It  was  a  collateral  fact  immaterial  to  the 
point  in  litigation.     The  record  of  the  sentence  (if  it  may 
be  so  termed)  was  not  in  issue.     Therefore  a  seal  to  it  was 
not  requisite  to  make  it  testimony.     "  There  is  a  difference 
between  pleading  a  record,  and  giving   it   in  evidence.     If 
pleaded,  and  the  issue  nid  tid  record,  it  must  be  sub  pede. 
sigilli,  or  the  judges  cannot  judge  thereof;  but,  where  it  is 
given  in  evidence  on  a  collateral  fact,  if  it  be  not  under  seal, 
the  jury  may  find  the  same,  if  they  have  other  good  matter  of 
inducement  to  prove  it."     White  v.  Pyndcr,  Styles,  22.    The 
same  authority  may  be  used  against  the  second  point,  that  a 
register  of  a  vessel  is,  by  act  of  congress,  a  record,  and  does 
uot  admit  of  parol  proof;  for  the  register  was  not  in  issue. 
It   was  not  the   matter  in   contest.     The    interest  was  the 
only  subject  of  litigation.     The  exception  cannot  mean  that 
a  register  is  a  judicial  record,    because  it    must  then   be 


ALBANY, 

1804. 


K.  ti.  Hallett 

v. 

H.  Pevton. 


33  CASES  IN  ERROR  IN  THE 

ALBANY,  an  absolute  verity  ,f  #never  to  be  contradicted ;  not  even  ad- 

i_j.     J^i  mitting  of  proof  that  it  once  was  wrong.  J     If  a  ship's  re- 

R.  s.  Haliett  gister  be  not  a  record   in  the  strict  technical  sense  of  the 

H.  Peyton.  word,  it  is  noi  proof  of  the  facts  it  contains.     It  can  amount 

T  to   nothing  more  than  prima  facie  evidence.     That  which 

f  Co.  Lift.  117.  j  i  i  n  -    r  -  t> 

b.  we  adduced  was  equally  prima  Jacie  testimony,     between 

,     34  two  e(jUais  there  can  be   no   difference.     Then  why  prefer 

*    Dickson      v.  .  .  ... 

Fitter,  \ Black,  the  register?  The  same  weight  of  evidence  is  in  one  case 
as  the  other.  To  establish  that  the  register  of  a  vessel  can- 
not he  a  legal  record,  and  therefore  that  proof  aliunde  of  it, 
and  its  contents,  may  be  resorted  to,  the  very  act  itself,  un- 
der and  by  which  it  was  created,  is  an  authority.     Naviga- 

$  Register  Jict,  ting  contrary§  to  the  ownership  expressed  in  the  register,  is, 
by  the  provisions  of  the  statute,  a  forfeiture  of  the  vessel. 
On  an  information  for  such  a  breach  of  the  revenue  law,  the 
facts  contained  in  the  register  are  the  very  subject  of  dis- 
pute. An  instrument  then,  the  facts  in  which  are  contro- 
verted by  other  facts,  and  go  to  a  jury  trial,  can  never  be  a 
legal  record.  When  the  question  is  as  to  the  qualification  of 
the  vessel,  as  to  what  privileges  and  immunities  she  may  de- 
mand, then  the  register  may  be  the  only  evidence  allowa- 
ble :  but  to  determine  to  whom  the  vessel  belongs,  it  is  on- 
ly, epluribtis  unum.  The  effect  of  a  register  may  be  illus- 
trated by  the  following  case  :  Suppose  an  act  passed,  au- 
thorizing commissioners  to  grant  to  persons  swearing  them- 
selves entitled  to  lands,  certificates,  on  production  of  which 
they  should  have  a  right  to  vote  at  elections  ;  this  certi- 
ficate would  be  conclusive  evidence  of  their  right  of  suffrage, 
but  would  never  establish  their  title  to  the  lands.  A 
doubt  may  be  entertained  how  far  the  register  is  evidence  at 
all.  It  is  obtained  on  the  oath  of  the  party  himself.  It  is 
contrary  to  legal  principles  to  allow  a  party  to  testify  in  his 
own  cause  ;  this,  however,  is  done  in  the  fullest  degree,  with- 
out even  the  chance  of  cross-examination,  if  the  register 
granted  on  his  oath,  is  evidence  of  the  facts  he  has  sworn  to. 
But  allowing  the  register  to  be  evidence,  a3  the  original  is 
at  the  custom-house  where  granted,  a  copy  only  could  have 


STATE  OF  NEW- YORK.  3** 

been  produced.     This  copy  would  not  have  proved  any      ALBANY, 
thing  of  itself;  it  must  have  been  corroborated  by  the   affi-     \^^~^/ 
davit  of  some  one  who  had  compared  it  with  the  original,     R-  S.  Haiiett 
and  would   have  taken  all  its  effect  from  the  oath.     In  the      h.  Peyton, 
present  case,  the  same  sanction  is  afforded,  for  the  witness 
swears  to  seeing  the  original  in  the  name  of  the  plaintiff  be- 
low. The  very  fact,  *then,  which  the  copy  would  have  esta-  *  35 
blished,  has  been  substantiated  by  oath.      But  where  a  deed 
is  lost,  a   simple   copy  without  witnesses,  and  unsupported 
by  affidavit,  will   be  allowed  in  evidence.!     1  Lev.  25.     A  I  T'^P^  » 
fortiori  in  such  a  case  it  may  be  proved  by  witnesses,  that  an  bid  deed,  and 

J  TTJ  W  ftS        f°u'"I         *- 

there  was  an  original  which  they  saw.     Under  our  i-egister  roongthe  uumi- 
act,  however,  it  is  to  be  observed,  that  the  register  is  not  a  esla.e      u  mu 
proof  of  property.     The  register  may  be  in  the  name  of  one  gfp^J(JhJlJj 
man,  and  the  legal  right  of  ownership  in  another.     With  us,  y«jr  jjjjyg 
the  onlv  consequence  of  a  false  recital  of  the  owner's  name,  out  witnesses. 
as  it  regards  the  property,  is,  that  the  vessel  is  not  entitled 
to  the  privileges!  of  an  American  vessel.     But  under  the  ^c^ter  Act> 
British  statute,  a  false  recital  renders  the  transfer  null  and 
void,§  so  that  no  property  passes.     Rolleston  v.  Bibber t,  |«J3e».  III.  <•• 
3  D.  zs?  E.  407.     Camden  v.    Anderson,  5  D.  &f  E.   709. 
Westerdale  v.  Dale,  7  D.  &?  E.  306.      Moss  v.  Charnock,  2 
East,  349.     It  was  on  the  principle  stated  in  the  distinction 
taken,  that  the  decisions   in  the  cases  cited  entirely  rested, 
no  one  of  which  was  on  a  policy  of  insurance.     In  actions 
on  these  it  is  not  necessary  to  prove  a  strict  legal  title.    An 
equitable,  nay,  a   possible  interest  is  sufficient.      This  ap-  g^™** 
peared  from  the  sentence  acquitting  the  vessel  as  neutral,  u  Pull.  75 
and  from  the  proof  of  the  citizenship  of  the  now  defendant. 
It  is  not  said  the  proof  was  conclusive.     It  was  prim  a  facie, 
enough  to  go  to  a  jury,  and  if  not  rebutted,  then  it  became 
conclusive.     The  object  of  the  act  was  not  to  confer  on  re- 
gisters the  character  of  legal  records  ;  it  was  to  use  them  as 
mere   memoranda,  for  the  purpose  of  informing  the   cus- 
tom-houses what  tonnage  duty  ought  to  be  paid.      1  his  is 
further  evinced  by  the  act  specifying  what  vessels  shall  sail 
tinder  records,  and  what  under  registers.     Under  the  for- 


Uo*. 


35  CASES  IN  ERROR  IN  THE 

ALBANY,      mer,  are  to  navigate  all  those  built  in  the  United  States,  but 
owned  wholly  or  partly  by  foreigners  ;  under  the  latter,  all 


R.  S.  Haiiett     so  built  owned  entirely  by  American  citizens.     The  first  pay 
H.  Peyton.      thirty  cents  per  ton,  the   other  six.      The   word  record, 
*■ —  when  used  therefore  in  our  laws,  signifies  no  more  than  an 
office  memorandum.     It  is   exactly  synonymous.     In  our 
state  law  respecting  mortgages,  it  is  said  to  be  unnecessary 
"  to  record  or  register  at  full  length  the  certificate."    1  Rev. 
Laws,  480.  sec.  4.     So  in  the  register  act  itself,  sec.  9.  the 
collector  is  ordered  to  "  make  and  keep  in  some  proper  book 
a  record  or  registry  thereof."     The  same  in  sec.  26,  27. 
*  36  So  in  the  act  to  regulate  the  collection  of  duties  *on  imports 

and  tonnage,  sec.  21.  collectors,  naval-officers,  and  surveyors, 
are  directed  to  keep  "  true  accounts  and  records"  of  all 
their  transactions.  4  Laws  Unit.  Sta.315.  Being  coupled 
with  the  word  accounts,  shows  the  meaning  of  the  term, 
noscilur  a  socio.  If  the  appellation  of  a  record  is,  whenever 
applied  to  any  writing  in  a  statute,  to  give  it  the  force  and 
efficacy  of  a  legal  record,  what  a  host  of  judicial  records  of 
absolute  verity  shall  we  have  !  Every  permit,  every  custom- 
house paper,  would  be  a  record.  For  records  must  be  so 
either  in  the  legal,  or  the  vernacular  acceptation  of  the  word. 
.  There  is  no  third  or  hermaphrod ideal  Sort,  partaking  of  the 

natures  of  both.  Whenever  a  record  is  ordered  by  an  act 
to  be  made  of  any  transaction,  if  it  is  to  have  any  peculiar 
weight  as  evidence,  that  weight  is  always  declared.  Thus, 
in  our  state  law,  relating  to  the  proof  of  wills  in  the  court 
of  common  pleas  :  "  and  the  record  of  the  said  will  so 
proved  and  recorded,  shall  be  as  good  and  effectual  in  all 
cases,  as  the  original  wills  would  be  if  produced  and  proved.''' 
1  Rev.  Laws,  179.  sec.  6.  So  ibid.  317.  sec.  7.  relative  to 
the  records  by  surrogates  :  "which  records  shall  be  of  the 
same  force  as  the  like  records  in  the  office  of  the  judge  of 
the  court  of  probates  of  this  state."  So  the  certificates 
given  to  paupers  by  their  towns,  when  filed  and  recorded  by 
the  town  clerk  where  they  come  to  reside  :  "  every  such 
certificate,  so  acknowledged  or  proved,  and  allowed  as 
2 


STATE  OF  NEW- YORK.  36 

aforesaid,  shall  be  deemed  in  all  courts  whatsoever  within      ALBANY, 
this  state  as  duly  proved,  and   shall  be   taken  as  evidence    i  _,.',; 
without  any  other  proof  thereof."     1  Rev.  Laws,  570.  sec.     r.  s.  Haiictt 
12.     The  laws  of  the  union  are  in  exact  coincidence  on  this       H.  pjyton. 
point  with  our  own.     By  the  act  imposing   a  direct  tax,  4 
Laws  Unit.  Sta.  174.  sec.  6.  the  absence  of  commissioners 
from  meetings  is  to  be  recorded  and  noted  in  a  book,  to- 
gether with  their  excuses  for  not  attending  the  transcripts 
from  the  records  of  which    are  "  declared  to   be  conclu- 
sive and  legal  evidence."     By  the  25th  section  of  the  same 
statute,  page  187.  the   alienations  of  lands  assessed,  are  to 
be  recorded.     Does  this  shut  out  all  proof  of  title  by  any 
thing  less  than  matter  of  record  ?  The  truth  is,  that  acts 
prescribing  registers  and  records,  do  not   abrogate   proof 
by  any  other  mode.     Therefore,  though  the  26th  Geo.  II. 
c.  33.  sec.  13.  ordains  that  a  registry  shall  be  kept  of  mar- 
riages,  it  does  not   exclude  the  presumptive  evidence  ari- 
sing from  cohabitation.    4  Bac.  Mr.  (new  edit.)  537.     In 
*the  next  place,  when   transactions   in  foreign  states  are  to  *  37 

be  established,  there  is  some  relaxation  in  the  rule  as  to  ad- 
ducing the  best  evidence  the  circumstances  could  afford. 
In  Wallls  v.  Delancey,  cited  in  Barnes  v.  Trampoxvsky,  7 
D.  &?  E.  266.  en  a  bond,  the  hand-writing  of  one  witness 
only  was  proved.  With  regard  to  the  other,  there  was  no 
evidence  that  he  was  either  dead  or  abroad.  The  defend- 
ant contended  it  was  not  the  best  evidence  the  case  would 
furnish.  Lord  Kenyan.  "This  is  a  foreign  transaction. 
The  proof  might  be  more  perfect,  yet  it  was  sufficient  and 
reasonable  evidence  for  a  jury,  at  least,  unless  rebutted  by 
some  evidence  on  the  other  side.  The  expense  in  sending 
a  commission  would,  in  many  instances,  be  more  than  the 
value  of  the  sum  in  dispute."  There  is  not  a  word  in  this 
decision  which  does  not  apply  to  the  present  case.  On  the 
score  of  inconvenience  argued  against  the  first  exception,  it 
is  conclusive.  On  the  point  of  presumptive  and  prima 
facie  evidence,  it  is  parallel;  for  the  individual  states,  with 
respect  to  each  other,  are  foreign  countries,  under  distinct 


37  CASES  IN  ERROR  IN  THE 

ALBANY,  and  independent  sovereignties.  The  exceptions  appear  to 
\-^  -^  »  urge,  as  erroneous,  the  admission  of  parts  of  the  proceedings 
R.S.Hallett  in  the  admiralty  under  the  seal  of  that  court.  It  has  not 
II.  Peyton.  been  insisted  on  in  argument,  but  it  may  not  be  improper 
to  observe,  that  so  much  only  of  a  record  as  concerns  the 
matter  in  question  need  be  given  in  evidence.  To  prove 
the  fdingof  a  declaration,  it  surely  is  not  necessary  to  show 
the  writ.  The,  whole  end  of  the  exceptions  before  the 
court,  is  to  gain  a  new  trial.  On  this  subject,  if  the  same 
considerations  can  be  here  entertained,  it  is  laid  down,  that 
they  are  not  granted  on  nice  and  formal  objections,  which 
do  not  go  to  the  real  merits.  3  Black.  Coram,  c.  24.  So  if 
the  verdict  of  the  jury  be  agreeable  to  equity  and  justice, 
the  court  will  not  grant  a  new  trial,  though  there  may 
have  been  an  error  in  the  admission  of  evidence,  or  in 
the  direction  of  the  judge.  Wilkinsonw.  Payne,  4  D.&E. 
468.  The  conduct  of  the  plaintiff  in  error  determines  the 
justice  of  the  case.  He  does  not  deny  ;  nay,  by  the  course 
he  has  taken,  he  confesses  the  facts  offered  in  testimony. 
He  does  not  rebut,  or  offer  to  do  away  the  presumption 
arising  from  them,  and  therefore  we  may  say,  stabit  pre- 
mmptio  donee  probetur  in  contrarium. 

Pendleton,  in  reply.     The  rule  of  law  is,  that  all  evidence 
ought  to  be  at  the  trial.     What  the  weight  of  that  evidence 
&  38  *might  be,  cannot  be  now  taken  into  consideration.     The 

only  point  is,  was  it  properly  received  ?  Therefore,  how- 
ever the  facts  are  admitted,  no  advantage  can  arise  in  this 
court  upon  those  admissions.  Nothing  has  been  said  to 
show  the  proof  of  the  seal  of  the  vice-admiralty  court  ought 
to  have  been  dispensed  with.  That  courts  here  may  be  ap- 
plied to  for  execution  of  an  admiralty  sentence,  is  not  law, 
and  would  be  ridiculous  in  any  country.  The  whole  train 
of  argument,  as  to  evidence  of  the  register,  goes  upon  the 
idea  of  its  having  been  lost ;  but  as  the  vessel  was  restored, 
the  presumption  is,  her  papers  were  with  her,  and  in  the 
power  of  the  plaintiff,  who  ought  therefore  to  have  produ- 


STATE  OF  NEW- YORK. 


38 


ced  the  one  granted  by  the  custom-house  at  Charleston,  or 
have  shown  why  that  could  not  be  had.  On  any  ground, 
therefore,  we  presume  a  new  trial  must  be  granted. 

Per  Curiam,  delivered  by  Lansing,  Ch.     The  plaintiff 
in  error  relies  upon  two  points,  for  the  reversal  of  the  judg- 
ment rendered  in  the  supreme  court  in  the  first  of  these 
causes.     His  counsel   have  stated  them,  and  insisted,  1st. 
That  the  brig  John,  having  been  released  fourteen  days  be- 
fore the  abandonment,  the  mere  ignorance  of  the  owners  of 
that  circumstance,  could  not  give  them  the  right  of  aban- 
doning the  brig  to  the  insurers,  which  it  was  admitted  they 
could  not  have  done,  if  they  had  known  the  real  truth  on 
the   subject ;    and,  2dly.   That  the  money  received  by  the 
owners  for  the  brig,  ought  to  have  been  deducted  from  the 
same,  as  the  underwriters  were  liable  to  pay,  and  the  as- 
sured entitled  to  recover,  only  for  the  difference  between 
that  sum  and  the  sum   insured.     These  questions,  it  ap- 
pears, arose  at  the  trial  of  the  cause  at  the  sittings,  and  the 
Judge  who  presided,  decided  the  suit  on  the  authority  of 
the  case  of  Mumford  v.  Church,  which  was  very  fully  and 
ably  argued,  while  I  was  in  the  supreme  court,  in  July 
term,  1799;  and,  after  much  deliberation,  the  whole  court 
united  in  opinion,  that  the   abandonment  was  conclusive. 
My  note-book  is  not  now  within  my  reach.     I  cannot  there- 
fore resort  to  it  to  refresh  my  memory,  but  I  have  a  copy 
of  the  case  which  was  stated  by  the  parties  in  that  cause, 
and  from  that  it  appears,  that  the  policy  was  on  the  brig 
Betsey,  which  sailed  from  New-Tork  for  Petit-Guave,  in  the 
island  of  Hispamola,  on  the  12th  May,  1798  ;  that  she  was 
captured  by  a  British  cruiser  on  the  26th  day  of  the  same 
month  of  May,  and  sent  into  Port  Mole  St.  Nicholas,  where 
she  was  detained   three  *weeks,  and  then  restored  upon 
paying  charges ;  and  that,  after  a  further  detention  of  three 
weeks,  she  was  permitted  to  depart,  but  under  a  British 
convoy  to  Jamaica,  from  whence    she   returned   to  Neto- 
Tork.     The  abandonment  was  made  the  12th  June.     The 

L 


ALBANY, 

1804. 


K.  S.  Halleit 

v. 
H.    l'eyton. 


*  39 


39  CASES  IN  ERROR  IN  THE 

ALBANY,      restoration  had  not  taken  place  when  the  abandonment  was 
made;  for  the  capture  was  on  the  26th  May,  the  abandon- 
ment on  the  12th  June,  and  three  weeks  from  the  former 
of  those  days,  during  which  the  litigation  with  the  captors 
was  pending,  clearly  overreached  the  period  of  the  aban- 
donment.    The  notes  which  Mr.  Justice  Kent  took  on  the 
subject,  and  which  I  have  examined  since  the  argument  of 
these  causes,  show,  that  this  was  particularly  adverted  to 
by  the  court.     If,  therefore,  the  opinion  given  on  that  oc- 
casion was  expressed  with  the  latitude  intimated,  it  was,  so 
far  as  it  was  beyond  what  the  circumstances  of  the  case  re- 
quired, extrajudicial;  and,  as    such,  it  would  not  now  be 
considered  as  authority  in  the  court  which  pronounced  it. 
The  general  reasoning  r<  sorted  to  in  the  decision  of  cases, 
is  sometimes  calculated   to  mislead;  but  whenever  it  be- 
comes necessary  to  examine  them   as  authority,  it  must  be 
rigidly  restrained   to  the  existing  case.     That  the  decision 
in  this  cause  was  supposed  to  be  broader  than  it  appears  upon 
examination  to  have  been  ;  and  that  it  was  so  received,  is 
evident  from  the  case  of  Shewn  v.  Burling,  determined  in 
October  term,  1799.     In  this  a  question  arose  on  a  policy 
insuring  a  cargo  which  was  captured,  liberated,  and  after- 
wards abandoned,  before  notice  of  the  liberation  had  been 
received.     That  case  was  decided  without  argument,  ex- 
pressly on  the  authority   of  that  of  Mumford  v.  Church ; 
and  on   the    general    ground,  that   an   abandonment    once 
made  was  definitive.     So    were    the  present  cases  at  the 
sittings.      I  however   think  that  these    cases  are    in  no  re- 
spects similar  to  that  of  Mumford  v.  Church  ;  and  that,  even 
in   the   supreme   court,  they  would  still  be   considered  as 
embracing  an  open  question.     In  most  occasions  of  mari- 
time  insurances,  the  remoteness  of  the  owners  from  the 
subject  insured,  effectually  precludes  from  a  direct  personal 
agency  in  its  management,  on  the  spot  to  which  it  may  be 
conveved,  by  any  of  the  incalculable  variety  of  incidents  to 
which  this  species  of  adventure  is  so  pre-eminently    expo- 
sed.    To  obviate  some  of  the  inconveniences  arising  from 


STATE  OF  NEW-YORK.  39 

this  circumstance,  they  are    sometimes  permitted  to  act,      ALBANY, 
upon  the  best  ^information  they  are  able  to  acquire  of  the    v^^~^/ 
actual  situation  of  the   subject  insured,  and  to  make   such     R s-  ^allett 
information  the  basis  of  the  rights  they  intend  to  assert,  in     H.  Peyton. 
consequence  of  the  occurrence  of  any  of  those  accidents,  #  40 

which,  in  their  effect,  produce  either  a  technical  or  actual 
total  lost.     But  certainly,  if  the  information  is  either  totally 
unfounded,  or  materially  variant   from  the  truth,  it  would 
be   a  strange   position   to   maintain,    that   its   resemblance 
should  be  preferred  to  the  truth  itself.     If  the  insurers  and 
insured  had  been  at  the  port  to  which  the  captors  carried 
the  brig,  an  abandonment,  under  all  the  circumstances  of 
this  case,  could  not  have  been  permitted  ;  for  at  the  time 
it   was  made,  the  vessel   was  restored,  and  prosecuting  its 
destined  voyage.     From  the  mere  act  of  abandonment    no 
positive   right  can  be  derived  to  the  insured,  unless  it  be 
combined  with  a  total  loss  ;  for  if  the  loss  should,  in  the 
final  event,  prove  an   average,  instead  of  a  total  loss,  the 
act  of  abandonment  would  be   nugatory.     In  these   cases, 
the  loss  is  not  pretended  to  be  deduced  from  the  deteriora- 
tion of  the  vessels ;  the  first  policy  was   underwritten  for 
g5,000,  the  repairs  of  the  vessel  amounted  to  about  §800, 
and  the  full  freight  from   Nexv-Tork  to  Cadiz  was  paid  by 
the  captors ;  the  amount  of  this  loss,  calculated  from  the 
comparative  value  of  the  subject  insured,  with  the  amount 
of  the  repairs,  clearly,  on  that  ground  only,  would  consti- 
tute an  average  loss.     That  this  is  the  doctrine  adopted  in  2  Burr.  683. 
Great  Britain,  and  which  still  obtains  there,  appears  from 
some  of  the  cases  cited.      In  the  case  of  Goss  v.  Withers,  it 
was  made  a  point,  whether  the  assured  had  or  had  not  a 
right  to  abandon,  after  the   ship  hud  been   recaptured  and 
earried  into  Milford  harbour.     The  capture  was  assumed, 
as   prima   facie  constituting  a  total   loss.      The   salvage 
amounted  to  hall  her  value  ;  the  loss  of  freight,  the  captivi- 
ty of  the  master  and  mariners,  the  dissolution  of  the  charter- 
party,  and  the  disability  of  the  vessel  to  pursue  her  voyage, 
are  reasons  given  by  the  court,  from  which  the  continuance 


40 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1804. 


2  Burr.  1198. 


#   41 


of  the  total  loss  was  to  be  inferred,  and  on  that  ground  only, 
and  not  because  the  capture  constituted  a  total  loss,  was 
the  judgment  of  the  court  given.  In  the  case  of  Hamilton 
v.  Mendes,  which  arose  on  a  policy  on  the  ship  Selbij  and 
her  cargo,  from  Virginia  or  Maryland  to  London ;  the  ship 
had  been  captured,  recaptured,  and  carried  into  Plymouth, 
where  *she  arrived  on  the  6th  day  of  June,  1760,  and  was 
offered  to  be  abandoned,  at  London,  on  the  23d  of  the 
same  month.  The  ship  had  sustained  no  damage  from  the 
capture,  and  the  whole  cargo  was  delivered  to  the  freighters, 
at  the  port  of  London,  who  paid  the  freight.  Lord  Mans- 
field, in  delivering  the  opinion  of  the  court,  observed,  that 
the  ship  and  cargo,  in  the  case  of  Goss  v.  Withers,  were 
literally  lost.  He  explains  the  words  quoted  from  his  opi- 
nion in  the  latter  case  :  "  that  there  is  no  book,  ancient  or 
modern,  which  does  not  say,  that  in  case  of  the  ship  being 
taken,  the  insured  may  demand  for  a  total  loss,  and  aban- 
don," and  adds,  "  but  the  proposition  was  applied  to  the 
subject  matter,  and  is  certainly  true,  provided  the  capture 
or  the  total  loss  occasioned  thereby,  continue  to  the  time  of 
abandoning  and  bring'mg  the  action"  He  afterwards  lays 
it  down,  as  the  point  intended  to  be  determined,  that  the 
plaintiff'  upon  a  policy,  can  only  recover  an  indemnity,  ac- 
cording to  the  nature  of  his  case,  at  the  time  of  the  action 
brought,  or  at  most,  at  the  time  of  the  offer  to  abandon, 
and  observes,  that  the  plaintiff's  demand  is  for  an  indemni- 
ty. His  action,  then,  must  be  founded  on  the  nature  of 
his  damnification,  as  it  really  was,  at  the  time  of  the  action 
brought.  It  is  repugnant,  upon  a  contract  of  indemnity, 
to  recover  as  for  a  total  loss,  when  the  final  event  has  de- 
termined that  the  damnification  is  in  truth,  an  average  loss 
only.  This  reasoning  is  adopted,  after  an  elaborate  re- 
search, after  solemn  argument,  and  deliberate  examination 
of  the  theories  of  foreign  jurists,  and  after  a  critical  review 
of  the  opinion  given  in  the  case  of  Goss  v.  Withers.  From 
these  circumstances,  as  well  as  from  the  great  talents  and 
ability  that  so  eminently  distinguished  the  tribunal  which 


STATE  OF  NEW-YORK. 


41 


ALBANY, 

1804. 


It.  S.  Hallett 

v. 
H.   Peyton. 


*  42 


decided  those  cases,  they  merit  particular  attention,  and 
are  well  entitled  to  be  considered  as  very  weighty  authority. 
They  would  have  been  respected  as  such  anterior  to  the 
revolution,  and,  in  the  estimation  of  our  courts,  that  au- 
thority has  not  been  weakened  by  the  change  of  govern- 
ment. The  doctrines  deducible  from  these  cases,  go  the 
length  of  determining  these;  for  they  fully  establish  the 
position,  that  a  capture  may,  according  to  circumstances, 
either  produce  a  total  or  partial  loss ;  as,  therefore,  the 
actual  loss  in  the  first  instance,  is  less  than  one-sixth  of  the 
valuation  of  the  brig  in  the  policy,  the  abandonment  could 
be  founded  only  on  a  partial  loss,  *which  of  consequence, 
was  incapable  of  constituting  a  case  to  warrant  it.  The 
case  of  Mills  v.  Fletcher,  was  decided  since  the  revolution, 
on  the  point,  that  if  the  owner  suffers  so  much  from  a  cap- 
ture, that  it  is  not  worth  his  while  to  pursue  the  voyage,  he 
may  abandon  ;  and  the  reasoning   in  the  case  of  Goss  v. 

Withers,  and    Hamilton  v.  Mendes,  is  again  recognised  and   l)oug.2W.  1  D. 

,      ,       ,         ,        ,  y£.  187.    Ca- 

enforced.     I  have  therefore  no  doubt,  but  that  these  cases  zakt  v.  Barbe. 

ought  to  be  governed  by  those  of  Goss  v.  Withers,  and  Ha- 
milton v.  Mencles,  as  well  on  the  ground  of  authority  as  the 
cogency  of  the  reasons  given  for  those  decisions.  As  be- 
fore the  abandonments,  the  event  of  discharge  of  the  ves- 
sels had  constituted  an  average  loss  only,  the  defendants  are 
not  entitled  to  recover  as  for  a  total  loss.  In  forming  this 
opinion,  I  have  not  brought  into  view  those  of  the  foreign 
jurists,  cited  in  argument.  In  many  instances,  it  is  useful 
to  resort  to  them,  to  elucidate  general  principles  ;  but  the 
occasional  infusion  of  the  spirit  of  local  codes  into  their  ge- 
neral system,  renders  it  sometimes  difficult  to  discriminate 
accurately  the  degree  of  weight  which  ought  to  be  attached 
to  these  opinions,  on  the  principles  they  treat  of.  In  these 
cases,  I  do  not  think  it  necessary  to  enter  into  an  examina- 
tion of  their  doctrines,  as  the  court  can  repose  themselves 
on  judicial  opinions,  derived  to  us  as  authority.  But  if  it 
were  necessary,  from  the  slight  glance  which  has  been  of- 
fered, I  am  persuaded  they  are  capable  of  being  reconciled, 


43  CASES  IN  ERROR  IN  THE 

and  that  they  would  tend  to  corroborate  the  general  result 
drawn  from  the  cases  adjudged  in  the  English  courts.  As 
to  the  second  point  in  the  case  first  argued,  thinking,  as  I 
do,  that  the  first  concludes  against  the  defendant  in  error, 

_ __ if  my  opinion  would  prevail,  it  would  not  be  necessary  to 

decide  on  this ;  I  shall  however  very  briefly  state  my  opi- 
nion on  the  second  point  also.  If  this  was  the  case  of  a 
total  loss,  the  defendants  in  error,  by  abandoning,  com- 
pletely devested  themselves  of  their  interest,  and  as  they 
afterwards  sold  the  vessel,  if  the  abandonment  was  valid, 
they  of  course  disposed  of  property  which  the  act  of  aban- 
donment unequivocally  determined,  was  that  of  the  plain- 
tiff. This  is  not  the  case  of  mutual  dealing,  but  the  sum 
received  is  the  price  of  the  subject,  for  the  damnification 
of  which  a  compensation  is  demanded.  It  is  a  charge  in- 
separably connected  with  that  subject,  calculated  to  dimi- 
nish the  amount  of  the  compensation,  and  the  forms  of  law 

*  43  must  be  exceedingly  rigid  and  ^unbending,  to  preclude  the 

plaintiff,  (the  defendant  in  the  court  below,)  from  entitling 
himself  to  a  deduction  of  the  amount  of  the  sale.  I  there- 
fore think  this,  without  notice  of  a  set-off,  a  proper  ground 
for  deducting  the  amount  of  the  sale,  after  adjusting  all 
reasonable  allowances  from  the  sum  demanded  by  the  de- 
fendants in  error,  and  that  the  evidence  to  that  point  ought 
to  have  been  admitted.  I  am,  therefore,  of  opinion,  on  both 
points,  that  the  judgments  in  these  causes  should  be  re- 
versed. 

The  whole  court  being  unanimous  in  this  opinion,  the 
judgments  in  both  causes  were  reversed,  on  the  point  of 
abandonment. 


STATE  OF  NEW-YORK.  43 


Richard  S.  Hallett  and  Walter  Bovvne  against 
Ebenezer  Jenks  and  others. 

IN  error,  on  the  judgment  of  the  supreme  court  in  Ebe-  A  vessel  driven 

7  ,,  j  by  distress  into 

never  Jenks  and  others  against  Richard  S.  Hallett  and  a  French  p°rt» 
Walter  Borvne,  reported  in  1  Gaines's  N.  T.  Rep.  60.  The  |u;r  ca,.g„  js  ta. 
case  was  exactly  as  it  is  stated  there,  and  the  arguments  of  Cws  tf  the'go- 
counsel  only  a  repetition  of  the  points  before  insisted  on  in  yjj1  'nrae"*'  *"'! 
the  court  below.  from  taking  tway 

licr   original    la- 
ding, may,  with- 
•  _        ,  .  ,  ,  .  out incurringtlie 

Lansing,  Ch.  On  this  case  three  questions  have  arisen:  penalties  of  the 
1.  Whether  the  sloop  Nancy  violated  her  neutrality  by  re-  ^s  iJjJJJJJj 
ceiving  the  paper  described  in  the  case  as  a  passport,  found  ^thr)er^'ipS  (^~{ 
on  board  at  the  time  of  her  capture  ?     2.  Whether  the  voy-  France,      pur- 

c.linse    and    load 

age  was  illegal,  and  in  contravention  of  the   laws  of  the  with  the  produce 

.  „  _  ..t-.i  i  i  r  •»     °f  the    country. 

Umted  States?  3.  Whether  the  concealment  ot  material  a  passport  gran- 
circumstances  would  avoid  the  policy?  As  to  the  first  Sty? "JUE 
point,  the  reasons  given  for  the  judgment  of  the  supreme  ^^g"^ 
court  appear  to  me  satisfactory.     There  is  nothing  beyond  cruisers,  is  not  a 

11  .  ....  sailing  under  the 

the  mere  import  of  the  paper  which  can  aid  in  giving  a  con-  protection  ofthe 

r  r  i  A»g  °f  that   go- 

struction  to  it.     In  its  form  it  professes  to  contain  simply  a  vernment,  so  as 
request  to  the  officers  of  the  French  navy  and  privateers,  to  JPor. aV' "el ^ai^etei" 
let  the  vessel  pass  free;  and  whether  it  is  in  the  ordinary,  on  the  veMeL 
or  an  uncommon  form,  does  not  appear.     If   it  was   the 
ordinary  clearance  used  in  the  island  of  Hispaniofa,  it  could 
not  be  considered  as  a  violation  of  neutrality  to  carry  it  in 
the  vessel;  and  as  it  is  expressly  found  by  the  verdict,  that 
the  passport  was  received   on   board  at  the   Cape,  no  in- 
ference to  the  prejudice  of  the  insured  can  be  drawn  from 
its  being  antedated,  which  *might  lie  the  effect  of  positive  *  44 

regulation  ;  and,  as  it  has  not  been  found  by  the  verdict, 
that  it  was  intended  to  confer  some  uncommon  privilege  on 
the  vessel,  I  think,  under  all  circumstances,  it  must  be  con- 
sidered as  a  mere  clearance.  As  to  the  second  question, 
the  voyage,  in  its  commencement,  was  a  lawful  one.  It 
was  from  one  of  the  ports  of  the  United  States  to  the  Ha,- 


44 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1804. 


R.  S.  HaHett 
it  W.  Bow  ne 

v. 

E.  Jenks  ant] 

others. 


*  45 


vanna,  a  Spanish  port ;  and  the  verdict  finds  that  the  ves- 
sel was  compelled,  by  distress,  to  put  into  Cape  Franfois, 
in  the  island  of  Ilispaniola.  To  the  time  of  her  arrival  at 
the  latter  port,  nothing  had  been  done  to  forfeit  her  neu- 
trality ;  the  touching  at  it  was  the  effect  of  inevitable  neces- 
'  sity ;  the  unlading  the  cargo  was  in  compliance  with  a  simi- 
lar necessity,  for  the  vessel  required  to  be  repaired.  The 
disposition  of  the  cargo  was  not  a  voluntary  act ;  and  its 
conversion  into  the  productions  of  that  island,  was  so  far 
an  act  of  necessity  as  to  leave  only  the  alternative  of  aban- 
doning the  interest,  or  giving  it  the  modification  dictated 
by  the  government.  The  policy  was  made  to  insure  the 
cargo,  thus  acquired  at  Hispaniola,  against  all  risks.  The 
intent  of  the  law  of  the  United  States,  seems  to  have  been, 
to  restrain  their  citizens  from  aiding  in  the  French  carrying 
trade,  and  by  that  means  to  impress  the  necessity  of  re- 
specting our  neutral  rights.  All  the  restraints  imposed  by 
the  statute  are  upon  the  vessel.  The  vessel  is  inhibited 
from  being  employed  in  the  traffic  or  commerce  described  in 
it.  The  finding  of  the  jury  has  completely  severed  the 
vessel  and  its  cargo  ;  for  it  is  found  by  the  verdict,  that, 
upon  the  arrival  of  the  vessel  at  the  Cape,  the  cargo  was 
landed,  and  was  not  permitted  to  be  reladen.  The  unlading 
was  the  effect  of  necessity,  and  though  the  captain  disposed 
of  the  cargo,  neither  its  disposition  nor  the  new  investment 
could  be  considered  as  the  employment  of  the  vessel ;  and 
yet  the  employment  of  the  vessel  was  the  only  point  to  which 
the  forfeiture  could  attach.  The  landing  was  involuntary, 
the  relading  impracticable;  and  though  the  vessel  was  af- 
terwards resorted  to  as  the  vehicle  of  conveyance,  it  was  to 
carry  the  property  of  citizens  of  the  United  States,  acquired 
under  circumstances  of  coercion,  and  it  may  literally  and 
truly  be  said,  in  the  language  of  the  statute,  not  to  have 
been  employed  in  any  traffic  or  commerce  with  or  for  any 
person  resident  within  the  French  territory.  The  statute 
was  limited  in  its  operation  to  vessels  departing  from  the 
United  States  *after  the  1st  day  of  July,  1798.     After  di- 


STATE  OF  NEW-YORK.  45 

recting  that  such  vessels  should  not  be   permitted  to  pro- 
ceed to  any  port  or  place  of  the  French  republic,  and  should 
not  be  employed  in  any  traffic  or  commerce  with  or  for  any    ^\|.  ^ea 
person  resident  within   or  under  the  jurisdiction  of  the  ▼. 

French  republic,  it  adds,  "and  if  any  ship  or  vessel,  in  any  others. 
voyage  thereafter  commencing,  and  before  her  return  within  — " 
the  United  States,  shall  be  voluntarily  carried,  or  suffered  to 
proceed  to  anv  French  port  or  place  aforesaid,  or  shall  be  em- 
ployed  as  aforesaid,  contrary  to  the  intent  of  the  said  act, 
that  then  the  vessel  and  cargo  shall  be  forfeited."  The 
law  was  not  intended  to  embarrass  the  citizens  of  the  Uni- 
ted States  fairly  pursuing  the  active  speculations  of  trade. 
It  never  could  have  been  the  intent  to  devote  to  indiscrimi- 
nate destruction,  as  well  the  property  of  those  whose  mis- 
fortunes subjected  them  to  an  irresistible  necessity  or  force, 
as  those  who  had  voluntarily  evaded  its  provisions  ;  and 
though  a  variety  of  cases  may  occur  in  which  private  rights 
must  unresistingly  bend  to  the  safety  and  preservation  of 
the  commonwealth,  they  are  to  be  found  only  in  the  extent,  JBac.  57, 
as  applied  to  great  and  imminent  emergencies;  and  even  in 
the  case  of  treason,  the  authorities  cited  to  establish  the  doc- 
trine, show,  that  there  may  be  exceptions  to  the  universality 
of  the  rule.  Here  every  fact,  calculated  to  show  that  the 
conduct  of  the  master  was  the  effect  of  an  influence  he  could 
not  resist,  is  established  by  the  verdict.  This  brings  it  4  La-wt  U.  S. 
within  the  purview  of  the  first  section  of  the  statute,  and 
appears  to  be  contradistinguished  from  voluntary  acts ;  for 
the  word  voluntary  may  well  be  considered  as  the  adjunct 
to  the  whole  sentence,  and  not  necessarily,  in  sound  con- 
struction, to  be  exclusively  limited  to  the  words  carried  or 
suffered  to  proceed  to  any  French  port  or  place  as  aforesaid  ; 
and  I  think  numerous  cases  must  occur,  in  which  a  vessel 
may,  with  as  much  propriety,  be  said  to  have  been  invo- 
luntarily employed  in  trade,  as  to  have  been  involuntarily 

carried  into  port.     The  law  of  congress,  of  9th  February,  4  Laws    V.   S. 

L   -       ,     ,  t  V.  .  248.  sec,  «T. 

1799,  is   sufficiently  broad  to  embrace  this  case :  it  pro- 
vides that  if  it  shall  appear,  that  any  ship  or  vessel,  seized 


4*  CASES  IN  ERROR  IN  THE 

ALBANY,  for  the  contravention  of  that  or  the  former  statute,  was  cap- 

i_j_     -1^_  /  tured   or  driven  £y  distress  of  weather,  or  was  unavoidably 

x!*w  ^If116"  detained  or  delayed,  by   some  embargo,  &c.  or  effcr  7/na- 

*  voidable  casualty,  without  any  fault,  xvilful  negligence,  or  ?«- 

E.  Jenks  and  .  .   .  . 

others.  tention  to  evade  the  provisions  of  the  said  statutes,   the  se- 

T~~T  "  cretarv  of  the  treasury  mav  direct  a  restoration,  of  the  ves- 

*  46  J  _     - 

sel  and  cargo.  If  it  could  be  brought  within  the  provision 
of  the  last  statute,  the  decision  of  the  secretary  might,  even 
after  a  seizure,  have  constituted  this  a  legal  voyage.  The 
case  of  Richardson  seems  to  have  some  analogy  to  this  ;  but 
we  are  totally  unacquainted  with  the  reasons  which  influ- 
enced the  court  in  that  case,  and  I  think  too  imperfectly  ac- 
quainted with  its  merits,  to  consider  it  as  having  any  weight 
here.  The  concealment  of  material  circumstances  is  the 
last  point.  The  cargo  of  the  vessel  was  insured  on  a 
voyage  from  Hispaniola  to  St.  Thomas.  As  the  insurance 
was  made  after  the  passing  of  the  second  act,  and  from  it, 
circumstances  might  exist  to  constitute  the  voyage  from 
Hispaniola  a  legal  one  ;  with  a  full  knowledge  of  this  cir- 
cumstance, the  insurers  underwrite  against  all  risks.  But 
it  has  been  said,  that  the  time  of  the  departure  of  the  Nancy 
from  the  United  States  does  not  appear  to  have  been  dis- 
closed to  the  insurers ;  and  hence  it  is  inferred,  that  there 
was  a  concealment  of  a  material  circumstance.  The  allega- 
tion of  concealment  is  in  the  nature  of  an  avoidance,  and  must 
cither  be  pleaded  or  averred,  and  in  all  events  must  be 
proved,  or  it  cannot,  in  legal  operation,  avoid  a  contract,  in 
other  respects  valid.  It  is  alleging  the  existence  of  a  fraud 
and  is  of  itself  a  substantive  and  effective  defence,  capable 
of  destroying  the  contract.  Nothing  of  this  kind  appears 
in  the  record  ;  and  in  pronouncing  an  opinion  in  this  case, 
the  court  are  necessarily  confined  to  the  record.  For  these 
reasons,  I  am  of  opinion  the  judgment  in  this  case  ought  to 
be  affirmed. 

L'Hommedieu,  Senator.     Two  months  had  elapsed  after 
the  vessel's  sailing,  before  the  insurance  was  made.     It  was 


STATE  OF  NEW-YORK.  46 

then  effected  at  *  premium  of  twenty-five  per  cent.     This  is       ALBANY, 


isoi. 


evidence  of  extraordinary  risk ;  and  it  is  more  probable  that 

the  insurers  knew  of  her  situation,  than  that  the   insured    oR.S.Hallett 

&  W.  IJowne 

made  any  concealment.     We  cannot   suppose  the   insurers  ▼. 

J  ■  E.  Jenks  and 

would  have  asked  so  high  a  premium,  if  they  had  not  known  others, 
her  situation,  in  what  port  she  lay,  and  the  possibility  of  her 
sailing  with  such  papers.  But  these  cannot  be  said  to  en- 
hance the  price  of  insurance,  as  they  would  be  rather  in  fa- 
vour of  her  safety  than  against  it.  The  captain  did  not  go 
to  a  French  port  voluntarily.  After  he  was  there,  and  could 
not  bring  away  his  property,  it  was  more  to  the  interest  of 
the  United  States,  that  he  should  bring  some  equivalent, 
than  to  leave  *the  whole,  never  to  be  recovered.     On  this  *  47 

ground,  among  the  others  already  stated  by  the  court,  the 
conduct  of  the  assured  ought  not  to  be  considered  against 
the  intent  and  meaning  of  the  laws  of  the  United  States.  I 
shall  only  observe,  that  it  is  probable  that  the  vessel  could 
not  have  escaped,  or  come  from  a  French  port,  without  the 
clearance  or  certificate  found  in  her,  but  at  the  risk,  perhaps 
certainty,  of  being  taken  by  the  French  cruisers,  who 
knew  her  situation.  On  the  whole,  I  am  of  opinion,  that 
the  judgment  of  the  supreme  court  ought  to  be  affirmed. 

The  whole  court   concurring,  the  judgment  of  the  su- 
preme court  was  unanimously  affirmed. 


Thomas  Wafers,  Richard  Thome,  and  Sarah  his 
Wife,  Appellants,  against  John  Stewart,  Re- 
spondent. 

THIS  was  an  appeal   from  a  decree  of  his  honour  the  Under  our  act 

...  .,i  ii  •      i  concerning j-kIlc- 

Chancellor.  The  complainants  filed  their  bill,  as  well  in  be-  rat,,ts  a„,V  ex'e_ 
half  of  themselves  as  others,  the  heirs  and  devisees  of  Sa-  ^ofSmiXn 
rah  Winner,  deceased,  who  might  come  in  and  contribute,  JKh£iff&er 
&c.  &c.     The  bill  set  forth  an  indenture  of  three  parts,  da-  »•>  execution  .»> 

a  jt.jci. 


47  CASES  IN  ERROR  IN  THE 

ALBANY,       ted  the  8th  April,  1769,  between  Henry  Wisner,  since  de- 
,^_^    ^'      ,    ceased,  of  the  one  part,  Sarah  Waters,  since  deceased,  of  the 
Thomas  Waters  second  part,  and  the   complainant,  Richard  Thome,  of  the 
and  others       third  part ;  which   indenture  was  admitted  by  the  defend- 
• Stewart-       ant ;  and  among  other  things,  as  far  as  it  is  material,  sub- 
stantially contained  as  follows  : — That  in  consideration  of  a 
marriage  about  to  take  place  between  the  said  Henry  Wis- 
ner and  Sarah   Waters,  she   had   conveyed   to   him  all  her 
estate,  real  and  personal,  authorizing  him  to  sell  and  dispose 
of  the  same ;  the  moneys  thence  arising  to  be  enjoyed  by 
the  said  Henry  Wisner,  during  the  joint  lives  of  him  and 
the  said  Sarah,  he  maintaining  and  educating  three  children 
of  her's  by  a  former  husband,  namely,  Elizabeth,  Hannah, 
and  Thomas  Waters,  till  they  should  come  of  age,  or  marry, 
if  the  said  Henry  should  so  long  live.     But  in  case  the  said 
Sarah  should  survive  the  said   Henry,  the  money  arising 
from  her  estate  as  aforesaid,  should  be  paid  to  her  ;  and  in 
case  he  survived  her,  it  was  to  be  paid  to  her  children  be- 
fore named  ;  and  that  in  such  case  she  should  have  and  en- 
*  48  joy  during  her  widowhood,  a  dwelling-house  and  *farm  of 

his,  situate  in  Goshen,  containing  about  seventy  acres,  which 
were  the  premises  in  question.  It  was  admitted  that  the 
marriage  between  Henry  Wisner  and  Sarah  Waters  took 
place  ;  that  he  took  and  disposed  of  the  property  she  con- 
veyed to  him,  to  the  amount  of  425/.  That  Henry  Wisner 
died  in  the  life-time  of  Sarah,  insolvent,  but  did  not  secure 
to  her  the  money  arising  from  her  estate  as  he  covenanted 
to  do  ;  consequently,  that  a  considerable  sum  was  due  to 
her  after  his  death,  and  to  her  representatives  after  her 
death,  from  Wisner* s  estate,  which  can  never  be  obtained, 
unless  the  premises  in  question  are  made  liable.  That  Sarah, 
the  widow  of  the  said  Henry  Wisner,  enjoyed  the  said  house 
and  farm  in  Goshen,  during  her  widowhood,  under  and  by 
virtue  of  the  said  marriage  contract,  and  until  her  death, 
which  happened  in  or  about  the  month  of  July,  1801.  It 
was  also  admitted,  that  Henry  Wisner,  deceased,  in  his  life- 
time, to  wit,  on  the  14th  day  of  February,  1786,  mortgaged 


J.  Stewart. 


STATE  OF  NEW-YORK.  48 

the  said  house  and  farm  to  William  Beekman,  to  secure  pay-      ALBAN y, 
ment,  on  or  before  the  14th  day  of  February,  1787,  of  387/.    K^-^mU 
13*.   with  lawful  interest,  bona  fide  due.      That   William  "»»*** 
Beekman  on  the  13th  of  October,  1782,  for  the  consideration 
of  300/.  (200/.  whereof  was  then  paid,  and  a  bond  given  for 
the  remaining  100/.  payable  on  the  death  of  the  said  Sarah 
Wisner,)  sold  and  assigned  the  said  mortgage  and  a  bond 
which  accompanied  the  same  to  the  respondent,  John  Stew- 
art, with  all  the  money  due  and  to  grow  due  thereon.     That 
a  judgment  at  law   was   obtained  against  the  said  Henry 
Wisner,  deceased,  and  thereupon  a  fieri  facias  and  ven- 
ditioni exponas   were  issued  to  the    sheriff  of  the  county 
of  Orange,  who,  by  virtue  thereof,  in  the  life-time  of  the 
said  Sarah,  the  widow  of  the   said  Henry  Wisner,   among 
other  things,  sold  the    equity  of  redemption  of  the   said 
mortgaged   premises,  subject  to   the   said    widow's   estate 
therein,   to  Henry  Wisner,  junior.     That  Henry  Wisner, 
junior,  on   the  19th  day  of  April,  1791,  conveyed,  among 
other  things,  the   right  and  interest  he  had  purchased  in 
the  said  premises,  to  Polydore  B.  Wisner,  as  a  trustee,  to 
enable  him  to  sell  and  convey  the  same ;  and  Polydore  B. 
Wisner,  on   the  11th  of  January,  1793,  conveyed  the  said 
equity  of  redemption  in  the  said  mortgaged   premises  to 
the  defendant,  John  Stezvart,  in  satisfaction  of  a  book  debt 
he  had  against  Henry   Wisner,   the  elder,  then  deceased. 
*Thus  the  defendant,  as  assignee  of  the  mortgage  and  the  #  49 

purchaser  of  the  equity  of  redemption,  under  a  sale  on  an 
execution  at  law,  claimed  to  be  the  legal  and  absolute 
owner  of  the  house  and  farm  in  question.  It  was  admitted 
that  Henry  Wisner,  deceased,  by  will  duly  executed,  de- 
vised the  said  house  and  farm  to  his  two  daughters  Eliza- 
beth and  Sarah,  in  fee.  That,  since  the  death  of  the  said 
Henry  Wisner,  and  before  the  bill  was  filed,  the  said  Eliza- 
beth and  Sarah,  in  due  form  of  law,  conveyed  all  their 
right  and  interest  as  such  devisees  in  the  said  house  and 
farm,  to  the  complainant  Thomas  Waters,  in  fee.  The  bill 
was  to  redeem  the  house  and  farm,  by  paving  to  the  re- 


49  CASES  IN  ERROR  IN  THE 

ALfso4fY'       sPonclent»  Stewart,  what  he  was  entitled  to  receive  as  the 
\^g — v^y    assignee  of  the  mortgage,  that  is  to  say,  the  sum  he  paid 

"^SHdKr  with  Merest;.  or>  *f  he  should  he  entitled  to  it,  the  whole 
J.sJwart.       amount  of  the  mortgage-money  and  interest.     This  right 

of  redemption  was  contended  for  hefore  the  Chancellor  on 

two  grounds ;  1st.  That  the  complainant,  Waters,  and  the 
other  children  and  heirs  of  Sarah,  the  wife  of  Henry  Wis- 
ner,  were  creditors  under  the  marriage  contract ;  and  that, 
in  equity,  that  contract  bound  the  premises  in  question  to 
pay  those  demands,  after  paying  the  mortgage  given  to 
Beekman.  2dly.  That  an  equity  of  redemption  could  not 
be  seized  and  sold  by  virtue  of  an  execution  at  law,  and 
that  consequently,  Thomas  Waters,  having  purchased  and 
taken  a  conveyance  from  the  devisees  of  the  estate,  had  a 
right  to  redeem  the  mortgaged  premises  upon  equitable 
principles,  by  paying  the  assignee  of  the  mortgage  what  he 
was  entitled  to. 

The  Chancellor  being  of  opinion  against  the  complainants 
on  both  grounds,  decreed  that  the  bill  should  be  dismissed 
with  costs  ;  and  thus  assigned  the  reasons  on  which  he  had 
pronounced. 

Mr.  President — This  cause  came  before  the  court  on  a 
motion  for  the  dissolution  of  an  injunction,  issued  to  re- 
strain the  defendant  from  obtaining  possession  at  law  of  the 
premises  in  question.  On  that  motion  the  whole  ground 
of  controversy  was  explored,  and  the  counsel  for  the  par- 
ties, discovering  that  a  determination  on  it  would  involve  a 
decision  on  the  merits  generally,  argued  it  a  second  time, 
as  on  a  final  hearing.  In  doing  this,  they  united  in  pre- 
senting,  as  a  determining  point  between  the  parties,  simply, 
whether  an  equity  of  redemption  in  lands  mortgaged  in 
*  50     »  fee,  is  subject  to  a  sale  *as  a  fieri  facias  f     To  determine 

this  question,  the  nature  of  the  subject,  and  the  course  of 
the  arguments  of  the  counsel,  lead  me  cursorily  to  trace  the 
progress  of  the  English  jurisprudence,  (as  far  as  it  has  any 
bearing  on  this  point,)  from  its  departure  from  the  common 
2 


STATE  OF  NEW-YORK.  50 


law  until  the  act  of  the  5th  Geo.  II.  and  the   subsequent      ALBANY, 
modifications  it  has  received  here.     It  is  certainly  a  sound     k^-^J^/ 
moral  principle,,  that  every  description  of  property  held  by  ThwWjte* 
a  debtor  should   be   subject  to   the   payment  of  his  debts. 

J  J.Stewart. 

The  policy  deduced  from  the  feudal  system,  was,  however, 

far  from  being  in  strict  unison  with  this  principle  ;  and  had 
so  far  blended  itself  with  the  English  institutions,  as  ge- 
nerally to  resist  the  infusion  of  those  dictated  by  more  just 
and  liberal  views.  This  detracted  from  the  security  and 
preservation  of  lands  in  the  hands  of  those  who  held  them, 
and  their  heirs  ;  for,  at  common  law,  only  goods  and  chat- 
tels, and  the  growing  profits  of  land  were,  on  a  levari  facias, 
or  a  fieri  facias,  liable  for  the  satisfaction  of  debts.     This  3  Co.   11.  /&;;- 

./  J  '  bevt  s    case.      " 

strictness  was  somewhat  retained  by  the  statutes  of  elegit;  hut. 394. 
for  it  appears  to  have  been  a  reluctant  departure  from  the 
more  ancient  doctrine,  certainly  not  reconcilable  to  its  ge- 
neral scope  and  object,  and  equally  remote  from  the  prin- 
ciple the  fratnera  of  the  statute  appear  to  have  been  dispo- 
sed to  approach:  for,  instead  of  carrying  the  remedy  the 
length  which  complete  and  effectual  justice  required,  it 
subjected  only  half  of  the  debtor's  real  estate  to  an  extent, 
with  a  reversionary  interest  to  him  or  his  heirs,  after  the 
debt  was  satisfied  from  the  profits  of  the  lands'.  The  in- 
road made  on  the  common  law  principles,  by  giving  the 
elegit,  has,  however,  been  protected  by  several  successive 
statutes :  thus    Blackstone,  in    his    Commentaries,    enume-  2  SI  332.  cites 

.   .         r  ii-  c  Use  of  the  Law, 

rates,  among  the  evils  arising  from  the  doctrines  of  uses,  ,53i 
the  defrauding  the  creditor  of  his  extent  for  debts.     He  adds,  \  jgJJJf;  *\$: 
to  remedy   these   inconveniences,    abundance   of    statutes  J^^™^; 
were  provided,  which,  among  other  thing?,  made  the  land  ^°-2«  Carl] 
liable  to  be  extended  by  the   creditors  of  cestui  que  use. 
Among  these,  the  statute  of  uses,  and  of  frauds  and  per- 
juries, were  most  effective ;  and,  after   the  passing  of  the 
latter  statute,  a  trust  estate,  whether  declared  or  resulting, 
was  considered,  in  the  language  of  Blackstone,  "  as  equiva-  2  Bi  837. 
lent  to  the  legal  ownership,  governed  by  the  same  rules  of 
property,  and  liable   to;  every  charge  in  equity,  v.-hivh   the 


50  CASES  IN  ERROR  IN  THE 

ALBANY,  other  is  subject  to  in  law."     "  The  trust  may  descend  ;  be 

I8')4 

K^r-^mn^j  alienated  ;  is  liable  to  debts  ;*  to  executions  on  judgments, 

Thomas  Waters  statutes,  and   recognisances,   (by  the   express   provision   of 

v-  the  statute  of  frauds,)  to  forfeitures,  to  leases,  and  other  en- 

J.  Stewart. 

cumbrances,  nay,  even  to  the  curtesy  of  the  husband,  as  if 


*  51  it  rvas  an  estate  at  law.''''     Thus,  in  the  case  of  Casborne  v. 

1  rftk.   603.  in  Scarf e  and  Inglis,  Lord  Hardwkke  lays    it  down,  that  an 

equity  of  redemption  cannot  be  considered  as  a  mere  right: 
but  such  an  estate  whereof  there,  may  be  a  seisin,  and  that 
the  person  entitled  to  it  is  considered  as  the  owner  of  the 
land ;  that  an  actual  possession,  clothed  with  the  receipt  of 
rents  and  profits,  is  the  highest  instance  of  an  equitable 
seisin ;  and  that  the  mortgagee,  as  to  the  legal  estate  and 
inheritance,  is  merely  a  trustee  for  the  mortgagor,  until  the 
equity  of  redemption  is  released  or  foreclosed.     In  the  case 

2  Vem.  401.  in  of  Amhurst  v.  Dawling,  an  advowson,  appendant  to  a  mort- 

gaged manor,  had,  before  that,  been  held  in  the  nature  of 
a  trust  for  the  benefit  of  the  mortgagor:  so,  in  the  case  of 

9  Vem.  540.  in  the  Attorney-General  v.  Haskeih  et  al.  in  which  the  same 
doctrine  had  before  been  laid  down  ;  and  it  is  in  that  case 
expressly  declared  by  the  Lord  Keeper,  that  the  court  which 
supports  trusts,  will  prevent  trusts  from  doing  mischief 
The  spirit  of  these  cases  has  been  recognised  and  enforced 
in  the  British  courts  of  common  law.     In  the  case  of  The 

J)mg.  Gio.  £.'5  King  v.  The  Inhabitants  of  St.  Michaels-,  decided  after  our 
revolution,  Lord  Mansfield  emphatically  declares  it  to  be 
"  an  affront  to  common  sense,  to  say  that  the  mortgagor  is 
not  the  real  owner."  And  whatever  might  have  been  the 
construction  at  an  earlier  clay  in  those  courts,  in  equity,  the 
intent  of  the  parties  has  been  permitted  to  give  a  com- 
plexion to  this  kind  of  transaction,  and  to  constitute  it  a 
naked  security  for  the  payment  of  money,  without  any  of 
the  substantial  rights  of  ownership.  It  is  merely  alien  un- 
til it  is  foreclosed,  or  the  possession  acquired  by  the  mort- 
gagee :  thus  the  mortgagor,  until  either  of  these  events  oc- 
cur, is  the  beneficial  owner;  he  takes  the  rents  and  profits 
without  any  account ;  he  is  a  freeholder,  qualified  to  vote 


STATE  OF  NEW-YORK.  61 


as  such,  and  he  is  deemed  the  owner  of  a  landed  estate      ALBANY, 
within  the  English  settlement  laws.     The  provision  for  ad-     v  1. 

mitting  him  to  vote,  is,  indeed,  by  statute  j  *but  it  ap-   Thomas  Waters 
pears  to  me  merely  a  declaration  of  the  law,  previous   to       aud  °lhers 
the  passing  of  the  act,  and  introduced  for  greater  caution.      J-  Stewart. 
The  case  of  Lyster  v.  Dolland,  reported  in  2  Broxvrfs  Ch.    Doug.  455.  Ea- 
Hep.478.  and  1  Vesey,  jun.  431.  does  not  impugn  the  ge-     my'   aqi£ *'Tg 
neral  doctrine ;  for  in  the  report  of  that  case  in  1  Vesey,  the   2  Laws  ./V.  F. 
Lord  Chancellor  admits,  "  that  an  equity  is  extendible,  and 
the  mortgagor  is  expressly  let  in  to  redeem,  on  the  ground 
that  the  mortgagee  had  so  mjxed  his  own  interest  with  that 
of  the  mortgagor,  that  they  could  not  be  distinguished."     I 
take  it,  then,  that  an  equity  of  redemption  in  England  is  an 
extendible  interest,  and  that  so  is  the  property  of  cestui  que 
trust  in  the  hands  of  trustees.     Bunb.  346.     The  solicitude 
ot  the  holders  of  landed  estates,  to  perpetuate  them  within 
families,  combined  with  the  genius  of  the  English  govern- 
ment, contributed  to  maintain  the  distinction  between  real 
and  personal  property,  which  obtained  after  the  passing  of 
the  statute  of  elegit :  but  the  collision  between  the  landed 
and  commercial  interest  being  merely  local,  as   confined  to 
Great  Britain,  and  not  so  extending  to   its  colonies  as  to 
react  by  influencing  its  parliament,  in  which  the  landed  in- 
terest of  those  colonies  had  neither  a  direct  nor  virtual  re- 
presentation, the  same  impediments  did  not  present  to  the 
passing  of  the  statute  of  5  Geo.  II.  c.  7.  for  the  more  easy 
recovery   of  debts   in  the   colonies.     This  subjected   real 
estate  to  a  disposition,  in  like  manner  as  personal,  on  exe- 
cution, and  a  remedy  was  thereby  given,  coextensive  with 
the  property  of  the  debtor,  regardless  of  the  distinction  which 

■j-  This  case  went  on  a  principle  of  their  remaining  in  a  lessee,  after  an  as- 
signment by  way  of  mortgage  of  all  his  right,  title,  h<\  in  the  term,  and  after 
forfeiture,  such  a  degree  of  interest  as  to  prevent  the  lessor  from  suing  the 
mortgagee  as  assignee  of  all  the  estate,  fee.  of  the  mortgagor.  But  in  Slave 
v.  Ewer,  Sitt.  at  West,  before  Kenyan,  i.fi.  Jif.  T.  39  Leo.  IIT.  his  Lordship 
declared  he  could  not  subscribe  to  the  doctrine  laid  down  in  Eaton  v. ./, 
and  in  Westerdale  v.  Dale,  7  I).  &  /•.'.  306.  it  stems  evident  that  his  Lordship 
considers  the  mortgagee  of  a  term  for  years,  liable  to  the  rent  reserved. 


52  CASES  IN  ERROR  IN  THE 

ALBANY,       had  been  so  sedulously  preserved  in  Great  Britain.     This 
statute  so  far  extended  in  practice  in  this  state,  while  a  colo- 


Thomas  Waters  ny,  as  to  affect  lands  by  sales  on  executions,  issued  on  judg- 
and  others       ments  obtained  against  the  executors  of  debtors,  on  the  prin- 
J.  Stewart.       cjple,  that  the  statute  of  5  Geo.  II.  had,  in  its   operation,  so 
far  as  respected  the  interest  of  creditors,  completely  converted 
real  into  personal  estate.     It  is  certain,  that  sales  of  equi- 
ties of  redemption  have  been  uninterruptedly  made,  from 
the  time  of  passing  that  statute,  until  the  legislature  passed 
L.M  T.  Green-  the  statute  of  19th  March,   1787;  and  the  same  practice,  as 
*53  to   such  sales  *has   continued   to  prevail  under  the  latter 

iliev.Law$,3&8.  statute.      This  statute  subjected  every  species    of  estate, 


sec.  1. 


comprehended  in  the  very  extensive  description  of  "lands, 
tenements,  and  real  estate"  to  be  sold  on  execution,  and  is 
strictly  compatible,  in  its  most  comprehensive  construction, 
with  the  general  provision,  that  both  real  and  personal 
estate,  in  the  hands  of  the  heir  or  executor,  (and  whether  the 
debt  was  contracted  by  specialty  in  which  the  heir  was 
named,  or  otherwise,)  shall  be  applied  to  the  satisfaction  of 
the  debts  of  the  ancestorr  or  testator.  There  is  one  ob- 
jection which  was  strongly  urged  against  giving  effect  to 
those  sales  here,  and  that  is,  that  the  purchaser  could  not 
take  the  effect  of  it  at  law.  If  this  position  was  correct,  I 
do  not  think  it  is  so  forcible  as  the  counsel  who  urged  it> 
A  sale  on  execution  is  not  enforced  peculiarly  by  the  court 
under  whose  process  it  is  made  ;  the  evidence  of  the  sale  is 
furnished  by  the  sherifF,  and  the  purchaser  elects  the  forum, 
to  which  he  intends  to  resort,  to  give  him  the  benefit  of  it. 
If  any  of  the  f am  of  the  state  are  competent  to  give  him  the 
effect  of  his  purchase,  every  intent  of  the  sale  is  fully  ac- 
complished ;  and  I  know  no  legal  or  equitable  principle 
that  can  repel  this  result.  But  if  the  mortgagor  was  pos- 
sessed, at  the  time  of  the  sale,  the  controversy  must  strictly 
be  between  the  mortgagor  and  purchaser :  no  inconvenience 
can  arise  from  compelling  the  former  to  yield  his  possession 
to  the  latter.  Thus,  in  a  recent  case,  it  has  been  held  in 
the  K.  B.  in  the  case  of  Bristow  v.   Pegg,  1  D.  &?  E.  758» 


STATE  OF  NEW- YORK.  53 

25  Geo.  IH.t  if  there  is  an  existing  title  paramount  the  per-      ALBANY, 

son  who  holds,  he  may  avail  himself  of  it  by  showing  it,  and  ^J^^ 

it  does  not  lie  in  the'  mouth  of  the  mortgagor  to  allege  its  Thomas  Waters 
existence  ;  for,  notwithstanding  a  title  might  exist,  by  virtue       ^  ^ ^ 

of  which  the  person  actually  seined  might  be  ousted,  it  would  _^ILl_ 

seem  strange  that  his  right  of  seisin  should  pass  by  the  sale,  J^***JJ 

and  the  latent  equitable  interest  which  he  had  in  the  lands,  whlch' seems  to 

_,  .  •  ,         »;~_-  .    have  shaken  ifr/- 

should  be  retained  by  him.  from  these  considerations  ,  st0,v  y,  Pe^t  at 
from  the  number  of  estates  which  depend  on  supporting  ^*^£/i- 
sales  of  this  nature  ;  from  the  long  practice  which  has  ob- 
tained respecting  them  ;  and  from  the  great  inconvenience 
which  would  result  from  the  doctrine,  that  however  great 
the  disproportion  between  the  sum  secured,  and  the  value 
of  the  estate  charged  with  it,  the  latter  might  be  protected 
from  being  applied  to  the  satisfaction  of  judgment  creditors 
on  executions,   I  think  sales  of  this  *kind  ought  to  be  sus-  *  54 

tained  ;  and  that,  whether  the  mortgagor  is  considered  as 
the  real  oxvner,  or  the  mortgagee  is  considered  as  his  trus- 
tee, an  equity  of  redemption  is  within  the  purview  of  our 
statute,  and  subject  to  sales  on  execution.  The  complainants' 
bill  must,  therefore,  be  dismissed  with  costs. 

Riggs,  for  the  appellants.  We  admit  the  moral  justice 
and  policy  of  making  every  man's  property  liable  to  his 
debts,  and  we  shall  even  concede  that  with  us  these  princi- 
ples have  been  carried  further  than  in  England;  but  notwith- 
standing this,  the  distinctions  between  legal  and  equitable 
estates,  have  in  each  been  preserved,  their  boundaries 
equally  marked  out,  and  thefora  by  which  they  are  to  be  ap- 
proached kept  invariably  distinct.  In  equity,  the  mortgagor 
is  considered  as  owner  of  the  land  ;  at  law,  the  estate,  on 
executing  the  mortgage,  is  in  the  mortgagee,  and  he  may, 
unless  restrained  by  his  covenant,  enter  immediately.  1 
Pow.  on  Mort.  105.  226.     And  though  a  mortgagor,  left  m 

~~  »«i*  *  thai  onsi"!  merelv  from  the  con-  $  •   Pow.     on 
possession,  pays  no  rent,;  M<«  arwes  mere*/ ««  Jthrtaaa* 

tract,  the  inierest  of  the  money  being  an  equivalent.     He  is 
a  mere  tenant  at  sufferance  to  the  mortgage  ;  for  after  for- 


54  CASES  IN  ERROR  IN  THE 

ALB&NY,       fciture,  so  completely  is  ihe  legal  estate  vested  in  the  mort- 

1804.  ,  ,  .  .  , 

\^r~sr*^j  gagee,  that  tne  mortgagor  is  not  entitled  to  the  common  no- 
Thomas  Waters  tice  to  quit,  which  must  be  given  to  a  tenant  at  will.     The 

and  others  t  ° 

v.  idea  of  a  constant  piactice  to  sell,  under  a fieri  facias,  equi- 

mm .    ties  of  redemption,  is  a  mistake  ;  I  never  heard  of  but  two 

instances  ;  one  was  settled,   the   other    is   now  in  dispute, 

the  maxim,  therefore,  of  communis  error  facit  jus,  e: 

apply.     But  errors  merely  acquiesced  in,  and  never  disputed, 

t  In  Lench  v.  do  not  constitute  the  tew.f     Actions  by  and  against  execu- 

practice' '  under  tors  anc*  administrators,  had  been  from  the  date  of  our  re- 

the    lords'    act  volution  entertained  in  justices'   courts  :  yet   the   first  time 

Jiail     been     one  J 

way  for   thirty  the  point  was  brought  before  the   supreme  court,  they  re- 
years,  but    was  '  J 
altered  the  first  versed  the  judgment  below. t     So  under  the  act  giving  cog- 
time  the  statute                       f    ,   •               A        t        •                  •       cr      ,     ,  ,        , 
came  under  con-  nisance  or  plaints.     Another  instance  is  afiorded  by  the  cor- 

coart  ILt  ^g0  portion  of  New-Tork.  They  had  lor  forty  years  been  in 
l  jvyr  j?re$  tne  habit  of  creating  penalties,  and  giving  half  to  the  inform- 
Wj»  er.     Suit  upon  suit  had  been  brought,  and  recoveries  had, 

yet  their  right  to  do  this  was  overruled  the  instant  it  was 
attacked  in  the  supreme  court.  All  power  of  selling  under 
executions  at  law,  landed  property,  or  any  tiling  savouring 
of  the  realty,  is  by  statute  provision  ;  and  what  the  words 
of  the  statute  do  not  cover,  cannot  be  sold.  Therefore, 
*  _ „  equities  of  redemption,  *even  of  chattel  interests,  in  terms  of 

years,  are  not  saleable  under  a  levari  facias,  because  the  act 
has  not  the  words  "  equitable  interests."  Burden  v.  Ken- 
nedy, 3  Atk.  738.  Lyster  v.  Dolland,  3  Bro.  C.  Rep.  478. 
1  Fez.  jun.  431.  S.  C.  will  be  found  to  tins  point,  notwith- 
standing the  chancellor's  apprehension  of  its  bearing  the  con-, 
traryway.  An  equity  of  redemption  is  not  known  at  law; 
it  is  a  mere  creature  of  chancery,  and  cannot  be  contemplated, 
therefore,  as  an  object  of  sale,  by  a  court  which  does  not  ac 
knowledge  its  existence.  What  is  not,  according  to  legal  con- 
templation, in  possession,  but  rests  merely  in  right,  cannot 
be  taken  in  execution.  Choses  in  action,  therefore,  cannot, 
be  seized  on.  Francis  v.  Nash,  Cos.  temp.  Ilardxvicke,  S3. 
Impcy^s  Sheriff,  157.  On  the  same  principle,  goods  pawned 
demised,  or  letten  for  years,  are  not  liable  to  aft.  fa.     Im* 


STATE  OF  NEW-YORK.  55 

pei/s  Sheriff,   158.      Audleij  v.    Halsey,]  Cro.   Car.   148.      ALBANY; 

Kitchen,  226.     To  make  an  equity  of  redemption  saleable  at    t^^    *'nei_r> 

common  law,  will  defeat   the  ends  of  distributive  justice.  Thoni&s  Wate* 

,       ,  ,         -  and  others 

A  debt  due  on  a  book  account,  note,   or  on  a  bond,  is  as  v 

much  a  debt  in  conscience  as  one  on  a  judgment ;  but  if  the  ;  >tevuit 

decision  appealed  from  be  confirmed,  one  judgment  credit-  t   T>>e     actio,, 

.  ,  ,  .ii  j  there    was    ti-o- 

or  may  run  away  with  even  the  equitable  estate,  and  ex-  Ver   for    goods, 

elude  all  the  other  bona  fide,  though  simple  contract  credit-  'v'aeS)     XeE* 

ors,  from  every  farthing.     It   has  been  the  policy   of  our  "^  JJ  «gj 

courts  to   extend  equitable  assets,  because  they  are   appro-  £arKStey°n  °i" 

priated  in  payment  of  debts  pari  passu.     For  this  purpose  gainst    the    co- 

*  t     •>  *  '  _  nuspr        owner, 

an  equity  of  redemption  is   considered  as  equitable  assets,  though  the  iibe- 

...  I'liii-     rclte    w«s    after- 

not  for  the  purpose  of  rendering  it  inapplicable,  but  that  it  wards,      should 

may  be  equally  distributed.     2  Atk.  290.$     1  Vern.  410, 41 1 ,  ££$  Jg^ 

412.$     Vern.  61.**  3  P.  0W  341.  Sir  C%«*fc*  Coxe's  case.  mia?S«id?W 

3Keb.307.     Amb.  308-tf    2  Freeman,  115.     3  Wooddesori;  *B^fH  T 

487.     It  is  so  perfectly  an  equitable  interest,  that  in  an  ac-  §  Co&  v.   RTa>-- 

1  ?  ...  <&"■       Plucknet 

tion  against  the  heir  of  a  mortgagor,  ne  can  plead  r/e/2  per  v.  A7;*.     The 

...  -  r       i  •  ..    r>  distinction      be- 

descent,  though  entitled  to  an  equity  ot  redemption.    1  rorv.  tween  mortgages 

on  Mort.  369.     In  all  cases  where  land  can  be  taken  for  "caJjwSh,  $£ 

debts,  the  debt  must  be  a  lien  on  the  land,  and  in   case  of  *J£e  t^*8  *j 

the   death   of  the   judgment  debtor,  after  an  intermediate  allowed  as  to  the 

->      °  uature  of  the  iu- 

alienation,  a  scire  facias  *goes  against  the  tertenant.     But  in  terest  left  io  the 

•  -i  i  i       i       i       r  m°Ptgagor.      In 

the  case  ol  a  mortgage,  then  a  judgment,  then  the  death  ot  mortgages     for 

r     •  ..  xi  .    u  vcars,  the  rever- 

the  mortgagor,  to  a  scire  jacias  against  the  tertenant,  he  may  sioit  i)ci.lg  a  lc_ 

show  title  in  the  mortgagee;  which  demonstrates  the  legal  JJrtJJJi!*  Jj 

estate  to  be  out  of  the  heirs  of  the  mortgagor.     The  salea-  tracts  the  equity 

,  ot     redemption, 

bility  of  an  equity  of  redemption  is  not  denied,  but  conve-  :<n.l  gives  it  the 
.,,...  A  quality  of  the  le- 

nience demands  it  should  be  id  chancery.     A  mortgage  may  versionary  inte- 

have  been   for   $10,000,   and   only  one  thousand   due;  the  B  case,  therefore! 


registry  may  show  the  full  amount  of  the  original  sum  lent  S^tE^fegli 

to  be  still  owine,  and  the  equitv  be  purchased,   under  that  :,(ssa;i-      But  if 

©'  *      J  i  the  mortgage  be 

presumption,  for  a  trifle.     The   reverse  maybe  the  case  ?  j«  foe,  and  there 

11  ;  is  nut  any  legal 

double   the  sum  apparent   may,  from   accruing  interest,  be  interest   left  in 

due,  and  the  equity  bought  ior  a  large  sum,  when  m  tact  not  the  equit)  of  re 

worth  a  cent.     Each  of  these  rases  may  produce   a  bill  in  ^.hauic" 

*•  Set-ate?]  v.  Bower  ft  Hnrtteell  v.  Chi 


56  CASES  IN  ERROR  IN  THE 

ALBANY,  chancery.  The  mode  of  coming  at  equities  of  redemption 
is  easy,  without  any  violation  of  principles,  preserving,  at 
the  same  time,  the  true  distinction  between  equitable  and 
legal  estates,  and  the  jurisdictions  by  which  they  are  cog- 

3.  Stewart.       nisable.     Let  the  creditor  sue  to  judgment,  then,  by  the 


ss 


analogy  adopted  in  chancery,  as  the  judgment  would  at  law 

attach  on  the  legal  estate,  its  operation   in  equity  will  affect 

the    equitable    interest,  and  an   encumbrance    be   created, 

t  That  is,  where  which  on  execution  sued  out,-]*  will  entitle  the  judgment  cre- 

ot6a  kasehow  or  ditor  to  his  bill  against  the  mortgagee  to  redeem.     3  Atk. 

ffhtrty^'     2004       1    PoW'    0U  M°rU    349'  359'  360'       2    Ch'  Ca'  170*§ 

Watts.  This  brinps  the  whole  matter  before  the  court,  which  alone 

§  Griswold  v.  ° 

Marsham.  can  give  full  relief;  the  account  on  the  mortgage  is  entered 

into;  the  sum  due  upon  it  discharged,  and  the  balance  paid 
If  i  Jiev.  Laxes,  over.  The  statute*}}  by  which  trust  estates  are  made  lia- 
66'  ble  to  debts,  will   not  warrant  the   decree   complained  of. 

That  act  relates  only  to  fraudulent  and    covinous  trusts, 
in  which  the  cestui   que  use  has  the  sole   beneficial   inte- 
rest ;  it  is  a  part  of  the  statute  of  frauds,  and  therefore  our 
1  Rev.  Laws,  act  declares  that**  the  land  shall,  under  the  sale,  be  held 
discharged  of   all  such  encumbrances.       This  would  de- 
feat the  mortgage.     The  English  authorities  confine  their 
law  of  frauds  and  perjuries,  of  which  ours  is  a  copy,  to 
these  trusts,   and   do   not  extend  them  to  equities  of  re- 
i\ -  Pallet  x.  At-  dernption.  2Saund.203.  Hard.  467.ff  1  Black.  Rep.  \±5.%% 
^"jlv^sTy1    9ur  act>  subjecting  lands  to   debts,  makes  a  provision  in 
Wheats.  casc  tj)e  pUrc}laser  should  be  evicted  :  now,  it  is  impossible 

J  Iiev.  Laws,      for  a   man  to   be  evicted  from  an   equity  of  redemption  ; 
S'J1'  and  if  he   was  by  the  mortgagee,  he  would  be  entitled  to 

*  57  ^recompense  from  the  judgment  creditor  himself.     This 

would  make  the  remedy  recur  to  the  same  point  from 
whence  it  set  out.  In  the  case  mentioned,  there  could  be 
no  legal  seisin  of  the  interest  to  be  sold,  and  the  form  of 
%*$\  Rex:  Laws,  the  execution  is  of  lands  "  whereof  seised.  ^T  All  lnat  can 
be  obtained  against  a  mortgaged  estate  by  a  judgment  at 
law,  is  an  equitable  lien  ;  for  a  judgment  creditor  cannot 
tack.     1  Poiv.  on  Mart.   526.  to  529.     After  sale   of  an 


'jm  s.  i. 


STATE  OF  NEW-YORK.  57 

equity  of  redemption  by  the  sheriff,  he  could  not  give  pos-      ALBANY, 
session ;  ejectment  would  not  lie  upon  his  deed,  and  chan-     \^^^/ 
eery  must  be  at  last  resorted  to,  to  give  effect  to  the  sale.       Thota«W£e*i 

V. 

Hoffman  and  Hamilton,  contra.     As  the  lands  and  real    _1I!L__ 
estate  of  a  debtor  may   be  taken  in  execution,  under  our 
statute  f  the  words  being  "  all  and  singular  the  lands,  tene-  f  1  Rev.  Law, 

,         .  «       -       •         3815. 

ments,  and  real  estate,"  the  only  question  is,  who  is  the 
owner  of  lands  or  real  estate  mortgaged  ?  If  the  mortga- 
gor was  out  of  possession,  we  concede  the  sale  would  not 
be  valid ;  and  that  was  the  circumstance  of  the  case  from 
Atkins  ;±  the  termor  had  parted  with  the  possession.     Till  * That,however, 

-'  -  f  was  not  the  point. 

the  decision  in  Brown  and  Vesey,  jun.  the  saleability  ot  an  on  which  thede- 

i       i  .     i        cision  turned.  In 

equity  of  redemption  on  an  execution  was  never  clouoteci  ;  A7hj?.  v  jy^,. 
and,  in  favour  of  its  being  vendible  under  a  /.  fa.  the  ^t^tferred 
opinion  of  Mr.  Poivell§  is  a  very  strong  authority.  There  that  ^mortga- 
can  be  no  reason  for  excluding  it  from   this  incident  an-  session;   but  in 

if  i  Slrirley  v.  Watts, 

nexed  at  law  to  real  estates,  when  it  partakes  ot  every  other  ib.  200.  the  con- 

•  tmrv  is  ratlicr  to 

quality  which  characterizes  land.     The   mortgagee  is  pro-  be  SUppo;ed. 

prietor  of  the  mortgaged  premises  only  so  as  to  protect  his  jjJJii^ifJJ 

security;  against  all  the   world  but  him,  the  mortgagor  is  g^^^JJ 

die  real  owner.     lie  mav  when  in  possession  levy  a  fine,*]  lav/      on     this 

,  point;     in     my 

ov  suffer  a  common  recovery, fj  and  must  ^'therefore  have  edition,  which  is 
the  legal  freehold  in  him.     Ilts  fine  bars  all  rights  but  that  nio„  is    gjven, 

and  the  case  ci- 
ted is  contra  the 
%  This  he  may  do,  without  having  any  interest  in  the  land,  and  m  such  a    e.xteridibilhy. 
case  the  fine  operates  not  on  the  land,  but  against  the  parties,  by  way   of  5» 

estoppel.  Anciently,  the  coguisee  was  put,  on  a  purchase  made,  into  pos- 
session before  the  fine  was  levied,  and  the  vendor,  by  way  of  security,  levied 
the  fine  afterwards.  3  Bac.  Mr.  n.  ed.  194.  Under  the  words  of  our 
statute,  a  fine  passed  by  a  person  out  of  possession,  will  be  as  effectual  against 
his  rights  and  the  rights  of  his  privies,  as  if  he  was  in  possession  ;  for  it  will 
be  a  perpetual  estoppel,  unless  the  persons  claiming  can  bring  themselves 
within  some  of  the  exceptions.  On  this  principle,  the  case  of  Wcalc  v. Lower, 
Pollex.  54.  was  determined.  Fines  stir  concessit,  and  cognisance  fie  droit 
tantum,  are  for  the  purpose  of  passing  interests  where  the  cogulsor  has  not  u 
freehold  in  possession. 

tf  Either  to  be  a  tenant  to  the  pracipe,  or  to  make  one,  it  is  necessary  that 
the  tenant,  in  one  case,  or  the  grantor  in  the  other,  should  haw  the  legal 
freehold  in  possession.  Qy.  How  would  a  mortgagor,  after  a  mortgage  in 
fee,  be  considered  ?  The  argument,  as  to  a  mortgagor  suffering  a  recovery, 
is  as  good  for  the  mortgagee.    See  Palm.  135.     Cro.  Jcc.  5D3. 


58  CASES  IN  ERROR  IN  THE 

ALBANY,       of  the  mortgagee,  who  is  not  afFectedf  by  five  years'  non- 
claim  ;  and  need  not  make  an  entry.     1  Pow.  on  Mort.  220. 


Thomas  Waters  In  consequence  of  this  ownership  of  the  mortgagor,  his  in- 

and  others  .  r         ,  .         ,  ,  .  - 

T.  terest  in  the  equity  of  redemption  has  all  the  properties   of 

'  a  legal  estate.     It  passes  by  a  general  devise  of  "  all"  my 

I  The  generality  real  and  personal  estate.     1  Pow.  on  Mort.  353.     It  de- 

of   this    position 

may,  perhaps,  he  scends  ;  the  personal  estate  is  first  liable  for  debts  ;  it  may 
<loes   not  affect  ue  entailed ;  it  follows  the  custom  in  borough  English.     1 

any  estate  which     73  n  1  r         at  ■  1  •    1 

it  does  not  de-  ^o~a).  346.  Nay,  a  mortgagor  gains  at  law  a  parish  set- 
turn  to  l?r!rhT  tlement  m  consequence  of  his  legal  ownership.^  Doug. 
At  between.  tb«  632.^     Lord  Mansfield  in  that  case  says,  "it  would  be  an 

parlies  and  their  u  J 

privies,    the  in-  affront  to  common  sense  to  say   the   mortgagor  is  not  the 

lent  will  control  J  °   ° 

the     operation,  real  owner."     But  further,  a  mortgagor  is  not  accountable 

Freeman       v.  _  „  r  .  .      - 

Barnes,  1  Sid.  to  a  mortgagee  tor  profits,  even  alter  the  mortgage  is  for- 
circumsianceCof  feited.  A  mortgage  in  fee  revokes  a  devise  only  pro  tanto.^\ 
cx!sih1gCI",T1ortn.  Tne  r'8nt  of  presenting  belongs  to  the  mortgagor  of  lands 
gage,  would  not,   to  which  an  advowson   is   appendant. ft     Our  statute  book 

H  may  be  argu-  *  ■  ■■  ■ 

ed,  prevent  the  recognises  the  mortgagor  as  the  freeholder :  he  is  declared 

::IFect  of    a  fine  ..  .... 

fn  barring  the  to  be  quahlied  to  vote  at  elections  in  virtue  of  the  free- 
f'he'inort^ge  be  hold$$  in  him.  The  estate  of  the  mortgagee^  has  none  of 
the  'interest  TJl  these  quali^es-  He  has  only  a  qualified  right  sufficient  to 
theal 'person  m  Protect  **«  debt.  To  make  his  title  efficient,  he  must  fore- 
possession,  a  fine  close;  but  though  he  do  this,  and  enter,  he  is  considered 

and      non-claim  . 

would  not,  1  pre-  but  as  bailiff  to  the  mortgagor,  and  liable  to  account.  IT^T  If 

stime,  be  a  bar. 

Fermor's  case,  3  Rep.  But  should  the  estate  be  forfeited,  and  interest  not  paid,  then  it  may 
be  a  question  whether  a  sale  by  a  mortgagor  in  possession  with  a  fine  levied,  would  not,  after 
live  years,  bar  the  mortgagee.  Suffyn's  case,  5  Rep.  123.  The  reasoning  in  favour  of  suck 
a  result  may  possibly  be  enforced  by  the  case  of  Dighton  v.  Grenville,  Cruise  on  Fines,  246. 
where  the  decision  of  the  House  of  Lords  is  given,  though  in  none  of  the  Reports  of  this  case 
has  it  been  noticed.  A  mortgage  in  fee  may  possibly  be  distinguished;  for  the  mortgagee 
may,  perhaps,  there  say,  partes  finis  nihil  habuerunt. 

\  Ft  perhaps  depends  rather  on  his  possession  ;  for  if  the  mortgagee  be  in  possession,  he  will 
gain  the  settlement.     Per  Ld.  Mansfield,  in  the  case  cited. 

§  The  King  v.  St.  Michael-,. 

^  This  is  in  equity  ;  at  law  it  is  contra,  and  on  the  very  principle  that  the  legal  estate  is  part- 
ed with  by  the  testator  during  his  life.     See  i  Vern.  342. 

tt  This  is  true  in  equity,  but  not  at  law,  for  the  mortgagee  having  the  legal  estate,  has  the 
right  of  presentation  ;  and  the  mortgagor,  to  prevent  its  exercise,  must  appiy  to  equitv.  Gal- 
ley  v.  Selby,  Com.  Rep.  343.     Croft  v.  Rowel,  ibid.  609. 

*t  While  in  occupation.  I  Rev.  Lotos,  2TA.  When  he  parts  wfi.fi  that,  he  loses  his 
right. 

§§  He  has,  when  in  possession,  a  right  to  vote,  ibid,  and  note  the  diversity  of  expression. 
flf  If  th?  decre?  of  forerlosure  be  opened. 


STATE  OF  NEW-YORK.  58 

fre  even  assigns  his  interest,  he  still  continues  liable  for  the       ALBANY, 

c    i    •  •  A  1      J         •  1804. 

waste  and  depreciation  of  his  assignee.     A  general  devise     ^^^^y 
by  him   of  all  his  estate,  will  not,  even  after  foreclosure  T1'°^asot^tsers 
*and  possession,  pass   the  lands   mortgaged-!     It  goes  to  gV.  *'' * 

his  executors  as  personalty,  and  not   to   his  heirs,  as  the . 

realty  would.     1  Pow.  on  Mort.  438.  et  seq.     He  has  but  *  59 

T  A  ftcr  fovcclo- 

a  chattel  interest.  Where  then  can  the  fee  be,  if  not  in  the  SUre,  if  the  de- 
mortgagor  ?  This  is  further  established,  because  a  mort-  mortgaged  pre- 
gage  will  pass  by  a  will  not  attested  according  to  the  J^ff^JX^ 
statute.  1  Poxv.  455.  The  interest  of  the  mortgagee  is  j^JPjjgJ; 
intrinsically  nothing  more  than   what  arises  from  the  con-  Garret  v.  Even* 

tract  of  borrowing,  and  therefore,  when  the  debt  is  paid,  IFthewitlbeprp- 

-    .  ,  perl}-     executed 

there  needs  no  reconveyance  ot  the   estate  to  the  mortga-  ae00rding  to  the 

gor.J     This  shows  the  legal  estate  remains  in  him,  by  vir-  2S23* "  *pT£ 

tue  of  the  equity  of  redemption,  and  is  necessarily  liable  for  *48;i2See  \^% 

his  debts  by  sale  at  common  law  under  an  execution.     If  ''gj^gjjjjjj 

this  would  destroy  the  mortgagee's  security,  then  it  could  v.  Owen,  l  Jttk. 

.  ,  .  5'20.   thiit  to  re- 

not  be  valid ;  but  it  is  not  so,  the  land  remains   subject  to  vcst  the  estate, 

_  ,  •  .„    there  must   he  ;i 

the    mortgage.     It  is  not  an  answer   to  this  reasoning  to  tUc(]  hiTlirnci. 

say  that  our  positions  rest  on  chancery  decisions.     In  equi-  yJfZt^mnt' 

ty,  and  at  law,  the  rules  relating  to  landed  property  are  the  B«ge   jj^jjjj 

1  D.  &  E.  762.  per  Bulkr,  T.<$  Courts  of  law  have  was    no  reoon 

1  vi'vanw.    held  It 


same. 


vevance,  held  to> 
latterly  been  disposed  to  acknowledge   equitable  principles,  protect  a  jndg- 

,  /-4        i.-  u  ment       creditor 

to  avoid  sending  creditors  there.     Un  this  account  the  as-  agai„sta  second 

signor    of  a  bond,  though  it  be  a  chose  in  action,  cannot,  JJ?KS  hem 

after  assignment,  release  the  obligation;  nor  can  even  the  «?£«  fSf?8! 

oblieor,  after  notice,  discharge  it.     The  inconveniences  of  tate  being  in  the. 
v      o     '  to  ^         niortgag<  e. 

selling  an  equitv  of  redemption  on  account  of  an  existing  §  Goodtitfy  v. 

°  l  ,         .  Morgan. 

mortgage,  are  imaginary.     They  are  no  greater  than  in  a 

sale  on  a  third  judgment,  where  there  have  been  two  pre- 
vious ones  for  the  penalties  of  bonds.  The  purchaser  takes 
subject  to  the  encumbrance.  An  equity  of  redemption  is 
equitable  assets^   only  in  a  certain  sense:    among  those 

If  The  cases  on  this  point  in  the  English  books,  seem  to  be  involved  in 
tome  degree  of  perplexity.  In  Sir  Chivies  Vox's  case,  3  P.  If  rns.  841.  and 
in  ffartwellv.  Chilera,  decided  upon  the  authority  of  that  case,  the  equity  of 
redemption  of  a  mortgaged  tc>  in,  was  held  to  he  equitable  assets.  It  appears* 
i '  r,  that  it  is  not .'  for,  as  the  executor,  had  there  not  been  a  mortgage* 
would  have  had  the  term  to  apply  in  a  course  of  administration,  it  would 

O 


% 


59  CASES  IN  ERROR  IN  THE 

ALBANY,  who  have  no  lien  on  the  land  ;  such  as  on  a  bill  to  redeem 
v  _^y    *by  general  creditors,  or  in  a  trust  for  payment  of  debts  ; 

Thomas  Waters  but  not  against  a  judgment  creditor,  who  by  his  very  judg- 
an  o  icrs  ment  obtains  a  lien  which  will  entitle  him  to  redeem.  1 
J.  Stewart.      pQ_v^    Qn  j^jortm   343.     To  force   him  to  this   alone  is  a 

*  60  grievance  for  which  our  statute  meant  to  afford  redress,  by 

permitting  him  to  sell  to  a  person  who  may  be  able  to  re- 
deem. A  mortgage  contract  may  be  for  ten  years,  with  a 
covenant  that  the  mortgagee  shall  not  be  compellable  to  re- 
ceive it  before  ;  must  a  creditor,  or  a  judgment  recovered 
immediately  alter  execution  of  the  deeds,  wait  ten  years  I 
The  simple  mode  is  to  sell  at  once  under  a  f.  fa.  for 
chancery  cannot  order  a  redemption.  The  argument  against 
selling  an  equity  of  redemption  because  it  is  equitable  as- 
sets, is  equally  forcible  against  selling  trusts ;  for  by  the 
statute  of  uses  they  are  made  liable  to  be  sold  by  the  sheriff. 
So  before  the  passing  that  act  an  heir  might  have  pleaded 
rlens  per  descent,  though  a  covinous  trust  was  existing ;  yet, 
since  that  law  has  been  enacted,  such  a  trust  is  saleable  un- 
der execution.     Though  ejectment  on  a  sheriff's  deed  for 

seem  the  equity  of  redemption  would  go  to  him  also,  on  the  same  principle 
as  it  is  held  to  pass  in  cases  of  real  properly,  to  him  who  would  be  entitled  to 
the  land.  Hawkins  v.  Lame,  1  Leon.  155.  and  the  cases  cited  by  Mr.  Cox, 
in  his  note,  2  P.  Wms.  344.  Whether  the  equity  of  redemption  in  real  estate, 
shah"  be  legal  or  equitable  assets,  may  perhaps  depend  on  another  question  ; 
that  is,  whether  the  mortgage  be  in  fee  ;  or  by  way  of  demise  for  a  term  of 
years?  In  the  former  case  it  has  been  conceded,  that  it  is  equitable,  because 
the  mortgagor  has  parted  with  all  his  legal  estate,  and  the  pure  equity  which. 
determines  the  nature  of  the  assets,  is  all  that  remains  in  him.  In  the  latter, 
as  he  retains  the  legal  reversion  after  the  term  created  by  the  demise,  that 
interest  gives  the  quality  to  the  assets,  rendering  it  legal,  and  a  judgment  of 
quando  acciderint  may"  be  had  against  it.  Massam  v.  Harding,  2  Jttk.  291. 
Hunt.  339.  Fortrey  v.  Fortrey,  2  Fern.  134.  If  the  redemption  be  equita- 
ble assets,  it  will  not,  it  has  be.  n  held,  be  affected  by  a  judgment  at  law.  In 
the  second  resolution,  in  Peg  v.  Beg,  2  P.  Wms.  4 1 6.  it  is  said,  "  the  pre- 
mises devised  being  mortgaged  in  fee  by  the  testator,  anil  he  having  nothing 
hut  an  equity  of  redemption,  could  be  "only  equitable  assets,  and  consequent- 
ly must  go  among  all  the  creditors  equally  ;  forasmuch  as  a  debt  by  judgment 
and  a  debt  bv  simple  contract  are,  in  conscience,  equal."  But  this  position 
is  a  little  shaken  in  the  decision  in  Sharpe  v.  The  Earl  of  Scarborough,  4 
Ves.  jun.  538.  It  was  there  ruled,  that  an  equity  of  redemption  is  not  equita- 
ble assets,  at  least  against  judgment  creditors  who  have  a  right  to  redeem, 
and  that  against  such  the  court  would  never  marshal  the  assets.  If  this  de- 
cision went  on  a  principle  of  rendering  equitable  estates  liable  in  equity  to  the 
same  liens  as  legal  estates  are  at  law,  it  seems  to  overturn  the  maxim  of  the 
court,  that  in  conscience  all  debts  are  equal  If,  however,  the  mortgage  was 
by  way  of  demise,  (and  the  contrary  does  not  appear,)  then  the  judgment  of 
the  Chancellor  will  not  oppugn  those  of  his  predecessors.  But  on  these 
points  the  learned  iu  the  law  must  make  their  owu  conclusions. 


STATE  OF  NEW-YORK.  60 

an  equity  of  redemption  could  not  lie  against  the  mortga-      ALBANY, 
gee,  yet  a  mortgagor  would  never,  in  a  court  of  law,  be  al-    k^^^^j 
lowed  to  set  up  the  title  of  his  mortgagee  against  the  pur-  Th^£f s 
chaser ;  and  against  the  mortgagee  there  would  be  no  claim,  v. 

because  the  purchase  would  be  subject  to  his  demand.     It  , 

a  mortgagor  may  sell,  why  may  not  a  sheriff?  Whatever 
the  debtor  can  dispose  of,  his  creditor  can  sell.  The  re- 
medy given  in  case  of  eviction,  is  where  the  debtor  *had  no  61 
title,  and  the  party  purchasing  is  evicted  by  a  prior  encum- 
brance. But  it  is  under  that  we  contend  the  purchase  is  made. 
The  words  of  our  act  are,  all  lands  and  "real  estate." 
Rev.  Laws,  vol.  1 .  388.  The  form  of  the  execution  given  is 
against  real  estate  whereof  "  seised."  There  is  nothing  to 
restrain  the  word  to  legal  seisins.  The  word  seisin  has  an 
equitable  interpretation.  2  Bro.  C.  Rep.  268.  272.  There 
may  be  an  equitable  seisin  of  an  equity  of  redemption,  for 
it  admits  of  a  tenancy  by  the  curtesy,  and  to  create  such  a 
tenancy  there  must  be  a  seisin  of  the  wife.  The  case  cited 
from  Atkyns,  and  1  Pow.  on  Mori.  352,  353.  shows  this. 
We  have  a  complete  union  of  legal  and  equitable  interests  ; 
we  had  the  first,  and  we  bought  the  latter.  But  whatever  may 
be  the  reasonings  from  the  common  law  and  English 
authorities,  we  rest  on  the  words  of  our  statute,  which  sub- 
jects to  sale  under  a  fi.fa.  "  all  real  estates,"  without  con- 
fining the  operation  of  the  words  to  such  as  are  legal  only. 
The  English  act  of  parliament  furnishes  no  kind  of  reason- 
ing against  this,  it  makes  land  only  extendible,  and  not  sale- 
able. Yet  under  that  very  law,  lands  on  which  there  has 
been  an  extent  upon  a  statute  merchant,  may  be  extended 
upon  an  elegit.]     Vin.  Abr.  tit.  Execution,  31.    1.   and  the  f- The  cr.se  was, 

1  "  .  ,  r  i  a    conusec    erf  :i 

notes.  So  if  a  reversioner  upon  a  lease  tor  years  acknow-  8tatute  WM  put 
ledge  a  statute,  &c.  the  rent  and  reversion  will  both  be  ex-  j^'' tiT'ex- 
tcndible.J  Bac.  Abr.  tit.  Execution,  B.  page  339.  2  Roll.  ^^^ 
Abr.  472.  Co.  Litt.  135.  A  rent-charge§  is  also  extendi-  .g^  gtto 
ble.     2  Show.  85.     Comb.  391.     Our  policy  makes  land  tent,  as  well  he 

might. 
|  The  reversion  being  extendible,  the  rent  will  go  with  it  as  its  incident. 

§Tt  *:.vours  of  the  realty,  and  land  in  the  statute  is  held  to  include  ^ny ^hereditament  in 
the  land,  and  a*  the  conusec  has,  by  the  words  of  the  statute,  an  estate  of  treeao.d  in  tn«> 
|>rer..i^es,  he  may  distrain  and  avow  for  the  rent. 


J.  Stewart. 


61  CASES  IN  ERROR  IN  THE 

ai/RANY,      more  liable  than  the  English  code.     On  a  dc  ficiency  of  per- 
\^^~^m^^/    sonal  assets,  the  court   of   probates  can  order  a  sale   of  the 

T'anTotherste,S  rea*  t  *n  tne  ver>7  case  °f  goods  pawned,  the  judgment 
creditor  obtains  an  interest  ;  3  Bnlat.  17. %  and  though  these 
cannot  be  taken  in  execution,  that  arises  only  because  pos- 

t*  Rev-  Lmvs>  session  is  proof  of  property,  which  is  not  the  case  with  land. 

i  "  If  a  man  doth  It  is  said  we  cannot  have  the  benefit  of  our  execution,  be- 

gage     goods    in 

pledge  for  40/.  cause  in  the  case  put,  a  set.  fa.  would  not  lie  against  the  ter- 

bon-owed    upon  ™,  .  . 

tlu  rn.ai'terwiuds  tenant.      1  his  reasoning  would  equally  prevent  selling  where 

condemned'  i'n  tne  ^eSa^  estate  is  in  the  trustee ;  yet  it  was  never  known  to 
another  *  ^hese  Preva,l  against  an  execution  concerning  *uses. 51  A  vendee 
be 'taken1  i"  cxe'  °^  PartnersniP  stock  taken  in  execution  for  a  debt  of  one  of  the 
cation  until  the  firm,  must,  before   he  can  have  complete  enjoyment  of  his 

40/.  be  paid ;  for  .  r  i  •     i 

the  creditor  hath  purchase,  discharge   the   Hen  of  the  partner;  yet  this  has 

an      interest     in  .  .  ,  .  rp, 

them."  The  40/.  never  been  urged  as  a  reason  against  such  a  sale.      1  he  same 

* l  V^'  principle  applies  to  equities  of  redemption.     Our  lands  do 

f  l  Rev.  Laws,  not  produce  rents,  and  therefore  convenience  dictated  our 

law  to  sell  the  soil,  because  possession  under  an  elegit  would 

never  pay  the   debt.       The  act  of  the  legislature  directs 

the  realty  to  be  sold  in  the  same  manner  as  personale  state. 

Van  Vechten  and  Benson,  in  reply.  The  arguments  op* 
posed  to  us  are  grounded  on  an  application  of  equitable 
rights  to  legal  estates.  They  tend  to  confound  all  distinc- 
tions between  equitable  and  legal  jurisdictions.  They  sub- 
vert established  forms  which  have  ever  been  held  the  land- 
marks of  property.  1  he  tenancy  by  the  curtesy  spoken  of 
**  Casbome  v.  in  the  case  from  Aikyns^*  cited  in  1  Paw.  on  Mart.  353.  was 

Scarte   and    In-  .     .  .  c  ^     ^  •     i  i  •   •  1 

glis,'i  Atk.  603.  an  equitable  tenancy,  founded  on  an  equitable  seisin,  and 
therefore  no  authority  to  prove  a  legal  right  on  an  equitable 
estate.  Only  legal  interests  are  liable  to  execution,  because 
the  law  gives  recourse  against  that  only,  to  which  the  officer 
selling  can  give  a  legal  title.     Of  lands  articled,  a  man  may 

ft  S'weetapple  v.  be  tenant  by  the  curtesy.  2  Vern.SSG.^  But  can  his  interest 
in  such  be  taken  on  an  execution  ?  Ejectment  will  not  lie 
for  an  equity  of  redemption ;  chancery  must  give  effect  to 
the  purchase  \  therefore  on  a  ft*  fa.  it  cannot  be  taken,  legal 


STATE  OF  NEW-YORK.  62 

rights  being  always  accompanied  by  legal  remedies.     The      Ai.*\NY, 
properties  of  an  equity  of  redemption  which  it  has  anaio-     \^^^/ 
gous  to  an  estate  at  law,  such  as  being  descendiole,  devisa,  T^^ 
ble,  &c.  can  be  availed  of  onl>  before  the  chancellor ;  there-       }  ^^ 

fore,  the  same  analogy  would  say  an  equity  of  redemption 

can  be  sold  only  by   application  to  him.     But  though  the 
equitable  qualifications  of  property  may  be  similar  to  those 
cf  correspondent  interests  at  law,  that  is  only  the  result  of 
the  principle  of  equitas  sequitur  legem.     Not  that  they  are 
objects   of  legal  cognisance.     Lands  articled  descend;    a 
contract  partly  executed  may  be  availed  of  in  chancery,  but 
not  at  law,  and  the  interests  acquired  under  neither  can  be 
liable  to   a  sale  by  the  sheriff.     In  the  cases  of  trust  made 
saleable  by  the  statute,  no  beneficial  interest  of  a  third  person 
intervenes,  such  as  the  mortgagee  has  at  law.     The  neces- 
sity of  a  statutef  provision  to  make   such  estates  liable  to  ^gmmm* 
execution,  shows  that  the  words  of  the  law  subjecting  real 
estates  *to  execution  could  not  have   been  intended  to  ex-  *  63 

tend  to   equitable  seisins,  for   then  the  other  statute  would 
have  been  unnecessary.     The  right  to  vote  and  the  right  of 
settlement,  which  may  be  exercised  and  gained  by  a  mort- 
gagor, depend  not  on  his  freehold,  but  on  his  possession,  and 
when  he  loses  that,  he  loses  his  rigM     Did   they  rest  on  ****£  * 
his  freehold  interest,  they  would  be  the  same,  whether  in  or 
out  of  possession  ;  and  the  act  bestowing  the  right  of  suf- 
frage, was  passed  only  because  without  it,  even   by  his  pos- 
session, as  he  had  no   freehold,  it  would  not  be   conferred. 
Upon  the  same  principle  rests  his  power  of  levying  a  fine; 
when  out  of  possession,  he  cannot,§  1  Paw,  on  Mori.  220. ;  M*£,  P-  m. 
but  after  a  mortgage  in   fee,  can  he   make  a  tenant  to  the 
praxipe,  for  the  purpose  of  suffering  a  common  recovery  ? 
All  his  rights  depend  on  his  possession  ;  therefore   he,  like 
a  disseisor,  may  bring  trespass.     The  reason  why  partner- 
ship stock  may  be  sold  under  an  execution  against  one  ot 
the  firm,  is,  that  the  vendee  may  enter  into  possession  with 
his  co-tenant.     This  cannot   be  done   on   an  equity  of  re- 
demption.    That  a  reconveyance  of  the  mortgaged  premises 


63  CASES  IN  ERROR  IN  THE 

ALBANY,      is  unnecessary,  is  true  only  in  certain  cases.     If  the  mort- 

!  81  (4.  " 

V-^^^fcJ    gagor  remain  in  possession  and  satisfy  the  debt  when  due, 
Thomas  Waters  in  any  action,  by   the  mortgagee,  he  would   be   allowed  to 

and  others  ,  '  °   u 

show  performance  of  the  condition  ;  and  if  the  mortgage 

J.  Stewart.        ,      ,  ,  „     ,  b  ° 

nad  been  given  up  or  cancelled,  a  jury  would,  in  all  such 

cases,  be  directed  to  presume  a  reconveyance.  But  if  the 
mortgage  is  forfeited,  and  the  estate  become  absolute  in  the 
mortgagee,  then  we  say  a  reconveyance  in  strictness  is  ne- 

tateT'  P'  58'  cessar>''t  ln  case  of  an  assignment  of  mortgaged  premises, 
the  mortgagee  is  liable  only  when, after  a  forfeiture,  and  be- 
fore foreclosure,  he  assigns  absolutely.  Not  because  the 
freehold  is  not  in  him,  but  because  he  has  exceeded  his 
equitable  authority,  equity  will  make  him  responsible  ;  his 
right  being  there  subject  to  redemption.  That  specialty  cre- 
ditors have  in  equity  any  preference  is  a  mistake-,  for,  unless 
the  judgment  creditor  first  removes  the  mortgage,  he  comes 

■atef*'  P'  59"  mPari Passll'X  When  he  gains  a  preference,  it  is  not  on 
the  foot  of  his  equitable'//^,  but  because,  having  discharged 
the  legal  encumbrance,  he  stands  on  his  legal  rights,  and  is 
in  some  degree  a  purchaser.  3  Atk.  293.  1  Paw.  on  Mort. 
369  to  374.  The  argument,  therefore,  that  the  present  de- 
cree tends  to  defeat  equitable  distribution,  and  take  away 
64  equitable  assets,  remains  ^totally  unanswered.  Chancery  re- 

quires a  judgment  creditor  to  sue  out  execution,  before  it 
will  allow  him  to  redeem  a  mortgaged  term,  only  from  the 
analogy  which  it  constantly  preserves  to  legal  principles. 
Because  at  law,  a  chattel  interest,  like  a  term,  is  bound  only 
from  delivery  of  the  writ.  Shirley  v.  Watts,  2  Atk.  200.  1 
Pow.  on  Mort.  349.  But  at  law  even  this  does  not  affect  it. 
Burden  v.  Kennedy,  3  Atk.  739.  In  Plunket  v.  Pierson,  2 
Atk.  292.  the  Lord  Chancellor  asked  the  bar  whether  aa 
equity  of  redemption  had  ever  been  held  liable  to  an  execu- 
tion by  a  bond  creditor,  and  the  unanimous  answer  was  in 
the  negative.  In  case  of  a  mortgage  in  fee,  the  judgment 
creditors  must  give  notice  to  the  mortgagee,  and  request 
him  to  receive  his  money.  If  he  receive  it,  the  mortgage 
being  removed,  execution  may  issue  ;  if  he  refuse,  the  ere* 

3 


STATE  OF  NEW-YORK.  64 

ditors  acquire  a  lien  on  the  premises,  not  by  virtue  of  their      ALBANY, 
judgment,  but  of  the   notice.      1  Paw.   on  Mort.  359,  360.    ,   ^    "''—*_' 
Greswoldv.  Marskam,  2  Ch. .-Cos.  170.     The  words  of  the  Thomas  Waters 
statute  do  not  say  equitable  interests ;  and  this  is   the  ex-       an  T  iers 
press  ground  of  the  decision  in  Lyster  v.  Dolland,  because      J-  Stewart 
acts  of  parliament,  and  acts  of  our  legislature,  apply  only  to 
matters  of  law,  unless  their  extent  be  declared.     Even   the 
statutes  of  bankrupts  do  not  affect  an  equity  of  redemption  ;f  -j-  This  is  a  mis- 
for,   after   the   conveyance  of  the  bankrupt's  estate  by  the  ^{\ie.  English 
commissioners  to  his  assignees,  he  still  may  redeem.     If  an  ^^jfi*J* 
execution  will  attach  on   it,  whether  the  mortgagor  be   in  act  ofjmgre* 
possession  or  out  of  possession,  is  immaterial;  and  yet  it  is  rfemption  passes 
conceded  if  the  latter  be  the  case,  it  cannot  be  touched.     But  uoners'    assiga- 

.  .  iiii.      -rr  l  l  merit.        Vcude- 

allowing  him  in  possession,  a  sale  by  the  sheritt  could  con-  mmJt«-  v.  i)es- 
vey  no  title  to  be  enforced  at  law  ;  for  in  an  ejectment  against  Jj^sefjtaaJ 
the  mortgagor,  as  he  would  be  no  party  to  the  deed  under  Act> sec- l2- 
which  the  plaintiff  would  claim,  he  could  not  be  estopped 
from  showing  a  paramount  title  in  the  mortgagee  ;  and  in 
ejectment  you  must  recover  by  the  strength  of  your  own,  not 
the  weakness  of  your  adversary's  title.     A  sale  by  the  mort- 
gagor of  his  interest  in  the  redemption,  for  it  is  not  an  estate, 
is  merely  in  the  nature  of  a  contract  to  be  perfected  in  equi- 
ty.    We  therefore    contend  the  sale  was  void  in   itself,  for 
so  completely  is  the  legal  estate  in  the  mortgagee,  that  he 
has  a  right   to  distrain  for  rent  arrear,  Moss  v.  Gallimore, 
Doug:  279.  and  this  even  if  due  on  a  lease  made  prior  to  the 
mortgage.     In  this  very  case,  too,  the  interest  of  the  mort- 
gagor is  in  a  legal  sense  reduced  even  below  that  of  a  tenant 
at  will. 

*Spencer,  J.     Two  questions  have  been  raised  for  the  #  65 

determination  of  the  court:  1.  Whether  the  appellants,  who 
are  the  heirs  of  Sarah,  who  was  the  wife  of  Henry  Wisncr, 
were  creditors  under  the  marriage  contract,  so  that,  in 
equity,  that  contract  bound  the  premises  in  question  to  pay 
those  demands,  after  paying  the  mortgage  given  to  Beck- 
man  ?     2.  Whether  an  equity  of  redemption  could  be  seized 


65  CASES  IN  ERROR  IN  THE 

ALBANY,       and  sold  by  virtue  of  an  execution  at  law  ?     It  will  not  be 

*_j-  y  -, >     expected,  that  any  opinion  will  be  pronounced  on  the  first 

Tin  mas  Waters  question.     It  appears  not   to  have  been  insisted  on   in  the 

and  others         ^  rl 

v.  court  of  chancery ;  and   although   the   appellants'  counsel 


would  have  had  a  right  to  argue  it  in  this  court,  still  they 
have  not  attempted  it.  Of  course  it  will,  as  respects  my- 
self, be  laid  out  of  the  case.  The  decision  of  the  second 
question  will  require  an  attentive  consideration  of  our  own 
municipal  laws,  with  such  aid  in  the  construction  of  them, 
as  we  may  draw  by  analogical  reasoning  from  the  British 
authorities  ;  for  I  take  it  to  be  well  settled,  that  in  England 
there  cannot  be  a  sale  of  an  equity  of  redemption  upon  a 
mortgage  for  a  term  of  years.  It  perhaps  may  admit  of 
doubt,  whether  an  elegit  or  levari  facias  cannot  there  be 
served  and  executed  upon  land  mortgaged  in  fee,  whilst 
the  mortgagor  is  in  possession,  and  when  his  right  consists 
of  an  equity  of  redemption  only.  That  it  was  the  uniform 
practice,  under  the  colonial  government,  to  sell  under  a 
fi.  fa.  all  kinds  of  interests  which  the  debtor  had  in  lands, 
including  equities  of  redemption,  has  been  admitted.  That 
this  practice  continued  until  the  year  1787,  has  been  also 
admitted.  And  though  the  practice  cannot  legalize  a  pro- 
cedure unauthorized  or  forbidden  by  the  law,  yet,  in  cases 
admitting  of  doubt,  it  may,  and  ought  to  be  regarded,  in 
expounding  statutory  provisions,  in  relation  to  the  same 
subject.  By  the  statute  of  the  19th  of  March,  1787,  it  is 
enacted,  "  that  all  and  singular  the  lands,  tenements,  and 
real  estate,  of  every  debtor  shall  be,  and  hereby  are,  made 
liable  to  be  sold  on  execution,"  &c.  This  statute  was 
re-enacted  among  the  revised  laws,  in  1801.  The  extent 
and  legal  operation  of  the  term  real  estate,  will,  in  a  great 
measure,  deade  the  question.  Courts  of  equity  and  courts 
of  law  undoubtedly  regard  the  rights  of  a  mortgagor  and 
mortgagee,  in  a  different  manner.  In  the  former,  the  land 
is  considered  as  7  pledge  for  the  debt  secured,  and  the 
mortgagor  is  considered  the  real  owner ;  in  the  latter,  the 
*  66  If  gal  estate,  to  some  ^purposes,  is  considered  to  be  in  the 


STATE  OF  NEW-YORK.  66 

mortgagee,  from  the  moment  of  the  execution  of  the  mort-      ALBANY, 
gage,  liable  to  be  defeated  by  the  performance  of  the  con-    v^^    J-^_^ 
dition,  to  wit,  the  payment  of  the  money,     In   other  re-  ihomis  \\  aisrs 
spects,  the  courts  of  law  follow  the  notions  of  a  court  of        '   v. 
equity,  and  consider  the  mortgagee  as  holding  the  mort- 


gage as  a  mere  security  for  the  money  due.  Thus  it  is, 
that  at  law,  on  the  death  of  the  mortgagee,  the  money  due 
is  considered  as  personal  assets  in  the  hands  of  executors 
or  administrators.  So,  too,  on  the  death  of  the  mortgagor, 
his  right  to  the  mortgaged  property,  if  he  originally  had  a 
fee,  and  the  mortgage  was  in  fee,  will  descend  to  his  heirs,  2  Burr.  «7&. 
and  not  to  his  personal  representatives.  An  equity  of  re- 
demption may  also  be  entailed ;  whereas,  if  it  was  con- 
sidered a  chattel,  it  could  not  be,  nor  could  it,  if  consider- 
ed as  a  mere  right.  By  a  devise  of  all  lands,  tenements,  and  *  Atk.  005. 
hereditaments,  a  mortgage  in  fee  will  not  pass,  unless  the 
equity  of  redemption  be  foreclosed.  Again,  a  husband 
may  be  tenant  by  the  curtesy  of  an  equity  of  redemption. 
To  perfect  this  right,  four  things  are  necessary ;  marriage, 
issue y  death  of  the  wife,  and  seisin  in  fact.  And,  as  to  the  ibid  60§. 
latter  requisite,  it  is  laid  down,  that  an  equity  of  redemp- 
tion was  not  to  be  considered  as  a  mere  right  only,  but 
must  be  taken  to  be  such  an  estate  whereof  there  might  be 
a  seisin.  From  all  these  considerations,  it  appears  to  me, 
that  a  mortgagor's  right  in  an  equity  of  redemption,  is  to 
be  considered  as  comprehended  within  the  broad  expression 
of  "  real  estate."  I  am  the  more  confirmed  in  this  opinion, 
from  the  general  and  almost  universal  idea  and  practice 
which  has  prevailed  for  a  series  of  years,  as  well  as  from 
the  legislative  declaration,  that  a  mortgagor  in  possession 
is  a  freeholder,  within  the  meaning  of  the  constitution,  and 
as  such  entitled  to  a  vote.  It  has,  however,  been  said  by 
the  appellants'  counsel,  that  the  form  of  the  execution  re- 
quires a  legal  seisin,  and  that  a  mortgagor  cannot  be  legal- 
ly seised.  This  exception  has  already,  in  some  measure, 
been  considered.  There  are  two  answers  to  it :  First,  The 
form  of  the  execution  ought  not  to  control  the  declared  in- 


66  CASES  IN  ERROR  IN  THE 

ALBANY,  tent  of  the   legislature,  in  rendering  every  species  of  reat 

1  'in  ..'Til''  estate  ^able  to  sale  ;  and  on  no  sound  construction  can  this 

Ti  ,   :,   •    (,e,s  exposition  be  admitted.     Second.  When  a  statute  speaks  oi 

v.  a  seisin,  an   equitable  seisin  may  be  as  well  intended  as  a 

J.  Stewart.  ]eg£j  Qne  .  antj  tne  term  jfl  appfrcable  to  both.     I  can,  there- 

#  67  fore,  ^perceive  no  substantial  objection  to  the  sale  ol   an, 

equity  of  redemption,  under  an  execution  at  law.  Diffi- 
cui  ies  have  been  started,  in  relation  to  the  provision,  giv- 
ing remedy  to  purchasers  evicted  for  want  of  title  in  the 
person  against  whom  the  execution  issued ;  and  it  is  said, 
that  the  purchaser  can  immediately  have  this  remedy, where 
an  equity  of  redemption  only  has  been  sold.  If  this  posi- 
tion was  well  founded,  it  would  only  prove  that  the  legis- 
lature had  not  foreseen  all  the  cases  which  might  occur  un- 
der that  provision  ;  but  it  certainly  proves  nothing  as  to  the 
right  to  sell  an  equity  of  redemption.  I  do  not,  however, 
perceive  the  difficulties  which  have  been  pointed  out,  in 
the  same  light  the  appellants'  counsel  have.  The  authori- 
ty given  to  the  supreme  court,  after  suing  out  the  original, 
and  stating  the  grievance,  is,  to  hear  the  complaint,  and 
do  justice  to  the  parties.  Surely  it  would  be  attended  with 
no  difficulty  to  decide,  whether  the  equity  of  redemption 
sold,  was  encumbered  beyond  the  amount  stated,  at  the 
time  of  the  sale ;  or,  whether  the  purchaser  was,  in  judg- 
ment of  law,  evicted  of  the  equity  of  redemption  he  had 
purchased.  Arguments  ab  inconvenienti  have  been  sug- 
gested: there  can  scarcely  exist  a  case,  however  well  set- 
tled, Avhere  such  arguments  cannot  he  urged  ;  they  prove 
nothing,  and  are  to  be  listened  to  only  in  very  doubtful 
cases.  In  the  present  case,  there  would  be  no  more  diffi- 
culty nor  inconvenience  than  exists  every  day,  where  there 
are  several  judgments,  and  the  senior  judgment  creditor  is 
disinclined  to  a  sale.  On  the  whole,  I  am  for  affirming  the 
chancellor's  decree  :  but  as  the  present  question  has  never 
before  occurred  in  our  courts,  except  in  one  instance,  where 
no  decision  was  made,  I  do  not  think  that  it  would  be  dis-- 


STATE  OF  NEW-YORK. 

fcreet  to  impose  a  mulct.     The  respondent  ought  to  have      ALBAN.Y, 
his  costs  only. 


Thomas  Waters 

;.n  tlCVS 

V. 

J.  Stewart 


Kent,  J.  The  right  of  redemption  was  contended  for 
in  the  court  below,  and  again  in  this  court,  on  two  grounds : 
1st.  That  the  marriage  contract  bound  in  equity  the  pre- 
mises in  question,  to  pay  the  money  that  Henry  Wwierhstf. 
covenanted  to  pay ;  and  that  the  same  belonged  to  the  ap- 
pellant and  the  other  children  of  Sarah  Waters,  who  were 
creditors  under  that  contract.  2dly.  That  an  tquly  of  re- 
demption cannot  be  seized  and  sold  by  virtue  of  an  execution 
at  law ;  and,  consequently,  that  the  same  still  exists  in  the 
appellant  Waters,  as  a  purchaser  under  the  devisees  of  Wis- 
ner.     I  do  not  ^perceive  that  there  is  any  basis  for  the  first  *  68 

doctrine.     The  land  in  question  had  no  connexion  what- 
ever with  the  subject  matter  of  the  contract.     There    is  no 
instance  where  an  equitable  lien  has  been  carried  to  such 
an  extent.     The  consideration  of  the  contract  did  not  arise 
from  the  land  ;  and  there  is  no  equity  that  this  particular 
land  should  stand  charged  with  the   fulfilment  of  the  con- 
tract, when  there  was   no  agreement   to   that  effect,  and 
especially  as  against  a  creditor  or  a   purchaser,  without 
notice  of  the  contract.     The  only  real  question  then  in  this 
case  is,  whether  an  equity  of  redemption  can  be  sold  under 
an  execution  at  law?     This  is  a  point  of  importance  and 
difficulty  ;  and  although  I  cannot  arrive  at  any  conclusion 
altogether  free  from  embarrassment,  I  am  inclined  to  the 
opinion,  that,  under  the  act  of  our  legislature,  an  equity  of 
redemption  can  be  sold  at  law  ;  and,  consequently,  that  the 
decree  is  correct,  and  ought  to  be  affirmed.     I  admit,  that 
under  the  English  law,  an  equity  of  redemption  cannot  be 
sold  by  process  at  law  ;  and  yet  their  decisions  have  ap* 
preached  pretty  nearly  to  the  same   thing.     According  to 
strict    technical  form    and   language,    a  mortgage   m  fee 
is,  at  law,  a  conveyance  of  the  estate,  and  differs  from  aa 
absolute  sale  only  in  respect  to  the  equity  of  redemption, 
which  is  a  mere  equitable  interest.     As  far  as  concerns  the 


68  CASES  IN  ERROR  IN  THE 

rights  of  the  mortgagee,  these  strict  formal  ideas  are  fully 

enforced.     Hence  a  mortgagor  in  possession  is  held  to  be 

Thomas  Waters  like  a  tenant  at  will :  he  receives  the  rent  by  a  tacit  agree- 

anc  ot  eis      ment.  but  the  legal  title  to  the  rent  is  in  the  mortgagee, 

J.  Stewart.       who  may  pUt  himself  in  possession  of  it,  and  turn  out  the 

Cro.  Jac.   f>59.  mortgagor  whenever  he  pleases.     The  mortgagor,  in  such 

Keech    v.    Hall,  i  i  i  •  i     i 

jyoug.  21.  Moss  a  case,  would  not  be  entitled  even  to  a  notice  to  quit,  nor 
jDbtt*.  279.   '      to  reaP  tne  emblements  as  other  tenants  at  will  are,  because 
all  are  liable  to  the  debt.     But  when  the  mortgagee's  rights 
are  not  in  question,,  a  mortgagor  in  possession,  and  before 
foreclosure,  is  a  totally  distinct  character.     He  is  regarded 
as  the  owner  of  the  land,  and  the  mortgage  is  treated  as  a 
l  Vent.  82.  Potv.  mere  encumbrance.     He  may  levy  a  fine,  and  thereby  bar 
nsm  I5Dsi  a^  tne  wor^>  except  the  mortgagee,  who  is  exempted  from 
E.  88  to  98.         ^  operation  by  the  nature  of  the  contract.     He  may  suffer 
a  common  recovery,  or  otherwise  aliene  the  land.     It  de- 
scends to  his  heirs  as  real  estate.     It  is  devisable  as  such. 
Po-a<.  on  Mart.  These  are  all  marks  of  ownership,  and  go  to   show  that 
"  a   mortgage,   until  foreclosure,  is  now   considered  as  a 
#  69  ^personal  engagement  only,  in  which  the  land  is  merely  a 

pledge  for  the  money,  and  remains   in  the  mortgagor  to 
everv  purpose,  except  that  of  securing  the  loan."     It  has 
accordingly  been  frequently  observed  by   the.  judges  in  the 
JDou^.   6i?2.  by  court  of  K.  B.  that  a  mortgagee,  notwithstanding  the  form  of 
firhh%exl''nst.  the  instrument,  has  but  a  chattel  interest,  and  the  mortgage 
Michael  \E"**>  \s  oniv  a  security;  that  it  was  an  affront  to  common  sense 

293.   1  //.  Jj'fiCfC  -  J 

117      2    Burr.  to  sav  the  mortgagor  is  not  the  real  owner:  that  the  law  re- 

978,  »79.  Earn  :        ,  .     .  ,  ,  .  .  .  . 

v.  Jaques,  Doug,  cognises  his  interest,  and  has  a  right  to  the  possession  till 

the  mortgagee  brings  his  ejectment ;  that  neither  courts  of 
law  nor  equity  lose  sight  of  what  the  parties  intended,  and 
will  not  look  to  the  mere  form  of  the  conveyance,  but  will 
consider  what  the  parties  really  nuant  by  it ;  that  the  mort- 
gagor in  possession  is  owner  to  all  the  world,  and  the  estate 
of  the  mortgagee  a  mere  chattel  interest,  the  same  as  the 
monev  due  bv  the  mortgage;  that  it  accordingly  goes  to  his 
executors,  aivl  is  devisable  in  the  same  loose  manner  as 
other  chattels  ;  that  the  a&signment  of  the  debt,  or  even  for- 


STATE  OF  NEW-YORK.  69 

sivine  it,  and  that  too  bv  parol,  draws  the  land  after  it,  as  a     ALBANY, 
consequence.     These  different  and  apparently  contradictory    ^^^^j 
lights  in  which  the  subject  is  viewed,  arise  from  this  circum-  Thomas  Water* 

,  ,  ,        r    .  .  and  others 

stance — that,  m  the  one  case,  the  courts  speak  oi  the  mort-  v 

gage  in  reference  to  the  rights  of  the  mortgagee ;  and,  in       J- Stewart. 
the  other  case,  as  it  respects  all  the  world,  except  the  mort- 
gagee.    In  equity,  the   mortgagor  has  been  uniformly  re- 
garded as  the  legal  owner  ;  and  the  courts  of  law  have  lat- 
terly, in  many  respects,  adopted  the  more  rational  ideas  of 
chancery  on  this  subject.     If  the  mortgagor  is  to  be  deemed 
the  owner  of  the  land,  as  respects  his  own  acts,  and  as  re- 
spects the  world,  subject  only  to  the  lien  of  the  mortgagee* 
it  is  neither  unreasonable  nor  improper  that  courts  of  law, 
at  the  instance  of  other  creditors,  should  treat  the  land  as 
his,  under  the  same  limitation.     There  is  no  more  inconve- 
nience in  subjecting  the  land  to  execution,  because  there  is 
a  mortgage  upon  it,  than  there  is  where  a  prior  judgment 
has  bound   it.     The  vendee,  in   both  cases,  will  purchase 
subject  to  the  lien;  and  he  can  calculate  the  value,  deduct- 
ing the  encumbrance,  as  correctly  in  the  one  case   as  in  the 
other.      The  difficulties   suggested  on   the  subject,  are  not 
found  to  exist  in  practice.     The  English  courts  have  gone 
so  far  as  to   consider  the  equity  of  redemption   of  a  mort- 
gage of  a  term,  as  bound  by  an  execution  #at  law  in  the  like  *-  7® 
manner  as  if  it  was  the  term  itself.     A  judgment  creditor  is 
required  to  take  out  execution  at  law,  m  order  to  create  a 
lien  upon  an  equity  of  redemption  of  a  term,  before  he  is 
entitled  to  go  into  chancery  to  redeem.     The  statute  of  3  Aik.  200.   2» 
frauds  also  makes  lands,  in  the  hands  of  a  trustee,  liable  to  1  liev.La^U. 
sale  on  an  execution  against  the  cestui  que  trust;  but  this  is 
considered  as  applicable  only  to  a  strict  technical  trust,  and 
no  case  has  gone  so  far  as  to  allow  an  equity  of  redemption 
to  be  sold  at  law.     This  seems,  however,  to  be  implied  in  Sunt.  "-' 
the  remark,  that  a  tenant,  b>  the  elegit,  can  redeem  an  equity 
of  redemption  ;  for,  to  be   a  tenant  by  the  elegit,   he  must 
have  been  put  into  possession  by  the  sheriff.     But  the  ques- 
tion was   finally  settled  in  1781.     An  equity  of  redemption 


70  CASES  IN  ERROR  IN  THE 

was  sold  on  execution ;  and  on  a  bill  to  redeem,  it  was  con- 
tended, on  behalf  of  the  purchaser,  that  an  equitable  interest 
Thomas  Waters  might  be  taken  in  execution  ;  and  that  the  sheriff's  sale  was 

aiul  others  °  . 

v.  the  same  as  the   conveyance  oi  it.      I  ne  Lord  Chancellor, 

' however,  after  some  hesitation,  set  aside  the   sale,  on  the 

lister  v.   Do!-  ground,  that  an  equity  of  redemption  was  not  liable  to  be 

land,  3  liro.  C/t.    b  '  n       J  r 

C'a*.  478.  i  Fe*.  taken  in  execution  under  the  statute  ol  frauds;  although  he 
Burden  \.  ken-  admitted,  that  under  that  statute  the  sheriff  might  extend 
ne  y,  t  .  an  eqUjta]Jie  interest,  or  in  other  words,  a  chose  in  action, 
Cro.  Eliz.  742.  Choses  in  action  are,  in  other  instances,  liable  to  execution 
at  law.  Long  before  the  statute  of  frauds,  it  was  held,  that 
the  sheriff,  on  an  elegit,  might  extend  a  rent-charge,  although 
he  could  not  a  rent-seek ;  which,  being  wholly  detached  from 
any  right  in,  or  power  over,  the  land,  could  not  be  delivered 
as  liberum  tenementum.  The  sale  of  an  equity,  with  us, 
must  then  depend  upon  the  construction  of  our  statute.  I 
have  taken  this  slight  view  of  the  English  law  to  show,  that 
if  our  act  be  an  innovation  in  this  instance  on  the  previous 
law,  there  is  nothing  in  it  that  ought  to  alarm  us,  as  incon- 
gruous or  unreasonable ;  for  it  is  certainly  agreeable  to  the 
general  bent  and  spirit  of  the  more  modern  decisions.  If  I 
am  rightly  informed,  we  have  in  this  state  a  long  and  esta- 
blished practice  in  favour  of  such  sales.  This  usage  is  of  it- 
self deserving  of  considerable  weight.  The  practice  of  sell- 
ing equities  of  redemption,  with  us,  is  supposed  to  be  at 
least  as  ancient  as  the  statute  of  5  Geo.  II.  c.  7.  in  the  year 
1732.  That  statute  made  lands,  hereditaments,  and  real 
estates,  within  the  English  colonies,  chargeable  with  debts, 
*  71  and  subject  to  like  remedy  and  process  in  *any  court  of  law 

or  equity,  by  seizing  and  selling  as  personal  estates.  The 
statute  uses  the  broad  expressions  of  lands,  hereditaments, 
and  real  estates.  They  were  to  be  treated  exactly  as  personal 
property ;  and  it  became  usual  to  regard  lands  and  real 
estates  as  assets  in  the  hands  of  executors,  and  to  cause 
them  to  be  sold  on  execution  against  executors.  This  prac- 
Lmos  of  .v  .r.  tice  continued  down  to  the  year  1786,  when  it  was  abolished. 
bfar!.89'  V'  h  Equities  of  redemption  continued  to  be  sold  to  the  time  of 


STATE  OF  NEW-YORK.  H 

the  first  revision  of  our  statute  law,  when  the  sale  of  lands      ALBANY, 

on  execution  was  particularly  regulated  ;  and  if  it  had  been    , ^, 

intended  to  have  abolished  that  practice,  it   is  probable  the  Tlj-jWcr. 
act  would  have  contained  some  explicit  declaration  on  the  ^ 

subject,  or  at  least  that   it  would  have  used  precise   and  ___ _ 

definite  terms,  that   could  not   mislead,   or  be  misunder- 
stood.    But   the  act  of  1787  adopted  the  same  loose  latitu- 
dinary  terms  as  diose  in  the  statute  of  Geo.  II.     It  declares, 
that  all  and  singular  the  lands,  tenements,  and  real  estate 
of  every  debtor,  shall  be  liable  to  be  sold  upon  execution,  to 
be  issued  by  virtue  of  a  judgment  in  any  court  of  record. 
This   whole     provision  is    therefore    made    by   the   very 
terms  of  it,  exclusively  applicable  to   a  court  of  law;  and 
whatever  interests  are  included  within   the  description  of 
real   estate,   they  are   equally  included  within  an    execu- 
tion  at  law.      And   there  can  be  no  doubt,  I  think,  but 
that   an  equity  of   redemption  will  be    comprehended  in 
the  expression.     The  form  of  the  execution  prescribed   by 
the  act,  ought  not    to    be    construed  to  control  this  sub- 
stantive part  of  the  statute  ;  and,  if  they  cannot  be  recon- 
ciled, the  general  direction,  from  the  nature  of  the  two  pro- 
visions, ought  to   prevail.     We  have  seen,  from  a  case  I 
have  already  mentioned,  that  a  liberum  tenementum,  or  free- 
hold, will  include  a  rent-charge,  although   the   fee  of  the 
land  resides  elsewhere  ;  and  the  word  land,   in  the  body  ot 
the  execution,  will  apply  to  the   mortgagor's  estate,  espe- 
ciallv  as  the  word  seisin,  in  a  statute,  is  frequently  construed 
to  applv  to  an  equitable,  as  well  as  to  a  strict  legal  seisin. 
The  application  is  always  according  to  the  subject  matter    j***,  *. 
and  to  give  the  statute  complete  effect.    There  were  several 
objections  strongly  urged  to  this  construction  of  the  act. 
It  was  said,  that' the  remedial  provision  in  the  other  parts 
of  the  act,  in  case  of  eviction  of  the  purchaser,  will  not  ap- 
ply  to  the  case  of  a  purchaser  of  an  equity  of  redemption. 
I  have  not  been  able  to  discern  why  the  purchaser  of  an  *  72 

equity  of  redemption  cannot,  in  the  first  place,  obtain  pos- 
session of  the  land,  as  against  the  mortgagor  or  his  ass.gns  ; 


CASES  IN  ERROR  IN  THE 

and  why  lie  may  not  afterwards  be  evicted.     The  judgment 
is   undoubtedly  a   lien  on   the  land,  notwithstanding   the 
Thomas  Waters  mortgage.     We  have  seen,  that  where  a  term  for  years  is 

and  others  J 

v.  mortgaged,  the  equity  of  redemption  is  bound  by  execution 

'    '_ in  like  manner,  as  if  the  term  had  not  been  mortgaged ; 

and,  except  where  the  mortgagee  himself  is  a  party,  I 
should  doubt  whether  the  mortgagor  would  be  permitted 
to  set  up  the  mortgage  in  opposition  to  the  purchaser. 
Where  the  mortgagee's  rights  are  not  in  question,  the 
mortgagor  is  regarded  as  the  owner.  A  court  surely  would 
not  permit  a  juryman  to  excuse  himself,  by  denying  he  was 
a  freeholder,  because  there  was  a  mortgage  on  his  land.  A 
mortgagor  in  possession,  and  before  fpreclosure,  is  compe- 
tent to  be  a  tenant  to  the  prtecipe;  for  he  can  levy  a  fine,  or 
suffer  a  recovery.  He  is  therefore  a  tertenant ;  and,  in  the 
case  stated  at  the  bar,  I  should  incline  to  think  the  judg- 
ment creditor  might  have  a  scire  facias  against  the  heir  or 
assignee  of  the  mortgagor.  But  it  is  not  essential  to  give 
any  definitive  opinion  on  these  points  ;  nor  do  I  wish  to  be 
«  understood  to  do  so,  for,  admitting  that  the  remedies  to 
the  purchaser  of  an  equity  of  redemption  are  not  as  com- 
plete as  they  are  in  other  cases,  this  will  not  limit  the  opera- 
lion  of  the  positive  directions  and  powers  in  the  act  to 
which  I  have  alluded.  It  would  only  be  to  be  regretted, 
that  the  remedial  part  of  the  act  was  not  extensive  enough ; 
and  it  might  lead  to  legislative  amendment.  The  creditor 
in  England  was  allowed  his  extent  a  long  time  before  the 
statute  provided  a  remedy  for  him  on  eviction.  And  per- 
haps similar  difficulties  might  be  started,  as  to  the  power  of 
a  court  of  law,  to  give  full  effect  to  the  purchase  of  a  trust 
estate,  under  the  statute  of  frauds  ;  but  still  the  sale  there- 
of, on  execution,  is  not  to  be  disputed.  The  selling  of  real 
estates,  and  equities  of  redemption  on  execution,  is  peculiar 
to  us  ;  and  it  would  not  be  surprising,  if  some  of  the  tech- 
nical rules  of  the  common  law  might  meet  with  difficulty 
in  their  application  to  the  case.  If  the  purchaser  can  take 
possession  as  against  the  mortgagor,  when  in  possession, 


STATE  OF  NEW- YORK.  ?2 

he  may  defend  himself  against  an  ejectment  by  the  mort-  ALBANY, 
gagee,  by  bringing  the  debt  into  court.  In  this  way  he  v^^^t^/ 
may  protect  himself  completely  at  law.     The  doctrine  of  Thomas  Waters 

J    r  r  J  .  and  others 

^equitable  assets  ("and  which  was  much  pressed  upon  us  in  v. 

.  ••    mi       u       ■      i-ii    Jf      i    Stewart. 

the  argument)  is  not,  however,  affected  by  allowing  the  sale  oi  . 

an  equity  of  redemption.  It  is  settled,  that  an  equity  of  re- 
demption is  not  equitable  assets,  as  against  judgment  credit- 
ors. Arguments  drawn  from  inconvenience  are  entitled 
to  much  consideration,  in  cases  of  doubtful  construction ; 
but,  in  the  present  case,  I  am  of  opinion  they  operate  in  fa- 
vour of  the  decree.  A  very  considerable  part  of  the  lands 
in  this  state  are  under  mortgage  to  the  loan-offices,  and  to 
individuals  :  it  is  likely  they  will  continue  so  ;  and  if  judg- 
ment creditors  are  under  a  necessity  in  every  case  of  resort- 
ing to  chancery,  for  leave  to  sell  the  land  of  the  debtor,  it 
would  create  double  suits  and  double  expense,  and  would 
lead  to  much  inconvenience  and  delay.  After,  therefore, 
the  best  attention  I  have  been  able  to  bestow  upon  this  nice 
and  important  legal  question,  and  which  was  argued  by 
counsel  in  a  manner  that  did  much  credit  to  their  research- 
es and  abilities,  I  am  of  opinion  the  decree  below  ought  to 
be  affirmed.  The  mortgagor  was  in  possession  when  the 
equity  was  sold,  and  that  formed  a  material  ingredient  in 
the  case.  This  opinion,  therefore,  is  not  intended  to  apply 
to  the  case  of  a  mortgagee  in  possession. 


73  CASES  IN  ERROR  IN  THE 

John  G.  Leake  and  Bernardus  }    ,      i, 

-  .     .  >  Appellants 

Swartwout,  junior,  y    ll 

And  Melancton  L.  Woolsey,  Natha- 
niel Piatt,  Robert  Cochran,  Jonas 
Piatt,  Zephaniah  Piatt,  John  Bailey,   ^Respondents. 
James  Kent,  William  Bailey,  James  I 

Bailey,  and  George  Ker,  J 

*  74 

If  one  of  many  ,.         _, 

joint  mortgagors  ON  appeal  irom  chancery,  the  case  was  this  :  The  re- 
rest^to  a  third  spondents,  excepting  Ker,  had  purchased  of  one  Coll 
accepted  ty°the  McGregor,  a  large  tract  of  land  in  the  county  of  Clinton,  for 
"bstfSn  o"f  tne  sum  of  10i24l/-  10s-  °f  this  2,000/.  only  being  paid  in 
the  assignor,  and  cash  the  residue  was  secured  by  a  bond  and  mortgage  from 

an  endorsement  7  u    " 

be  made  on  the  the  purchasers,  dated  on  the  24th  of  February,  1 796,  paya- 

raortgage       and  _ 

bond,  that  such  ble  in  four  instalments ;  three  of  2,000/.  and  the  fourth  of 

thiid  person    is  ,.  ,       _  ,  r  »,  .  , 

accepted  in  lieu  2,241/.  10s.  the  first  on  the  1st  of  ywne,  1798,  without  mte- 

aLignoSofds^n  rest ;  the  rest  on  the  first  days  of  June,  1 799, 1 800,  and  1 801 , 

looked^)'  fondh'S  w*tn  mterest*     At  or  about  the  time  of  executing  this  bond 

proportion     ac-  ancj  mortgage,  7&r,  *wishingto  buv  out  the  interest  of  Coch- 

cordwgly,       the  DO?1  o 

land  will  be  ex-  ran,  agreed  with  MlGregor  and  Cochran,  to  be  substituted 

onerated      from  ..,*..  •  i  •  • 

the  proportion  in  the  place  of  Cochran  with  respect  to  his  interest  in  the 
on  hk  aaSssfgn°ee'  lands,  and  also  with  respect  to  his  responsibility  for  the 
£e"teuW  f°f  money  secured  to  be  paid  by  the  mortgage.  In  considera- 
an  account  be-  ^         f  ^^r,  so  substituted,  Ker  agreed  to  give  Cochran 

tween  the  mort-  ...  ,        ,° 

gagee  and  the  as-  joo/.  for  his  bargain,  and  to  repay  him  his  proportion  of  the 

signee,  in  which 

the    assignee  is  2,000/.  cash,  paid  to  McGregor,  amounting  to  the  sum  of  200/. 

debited  for    the  •  lA„    ,■  . 

amount  of  the  In  consequence  ot  these  arrangements,  JyrGregor  lent  to 
vW0ePd0rit°appear  Ker  the  100/.  agreed  by  him  to  be  paid  to  Cochran,  and  re- 
^e'been^aut  turned  to  Cochran  the  200/.  received  as  his  proportion  of  the 
e«d,      notwith-  2.000/.  paid  down.     A  memorandum  of  the  purpose  with 

standing       such       '  1  ■        l 

s-hi ^faction     be  which  these  transactions  were  had,  was  made  on  the  bond 

under    a   settle- 

nit  ut  made  after  and  mortgage  in  these  words  :  "  I  acknowledge  and  accept 

rigiaal  "bonds  of  "  of  George  Ker,  Esq.  in  lieu  of  the  share  which  Robert  Coch- 
tiie  assignee,  by  .  . 

Kiving  other  secur  ties,  and  at  the  time  of  giving  the  same,  the  assignee  have  notice  ot  an 
assignment  of  the  bond  and  mortgage  by  the  movtgagor,  made  between  the  first  and  second 
seltL  munis-. 


STATE  OF  NEW-YORK.  7* 

«  ran  holds  in  the  within  bond,  and  look  to  said  Ker  for  his     ALBANY, 
«  proportions    accordingly.     New-Turk,  24th  of  January,   y^L^^f 
1796."     Cochran,  on  this,  by  the  direction  of  Ker,  convey-    j0im  G.Leake 
ed  his  interest  in  the  lands  purchased  of  McGregor,  consist-    B  s™rtwoat 
ing  of  one  tenth,  to  Mrs.  Ker.     On  the  25th  of  June,  1796,    M  L  ^olgey 
Coll  McGregor  settled  an  account  with  Ker,  on  the  balance      aid  <*he». 
of  which  there  appeared  due  from  Ker  16,334/.     In  this  ac- 
count McGregor  debited  Ker  with  1,100/.  for  2,000  acres  of 
land  held  with  Piatt  and  others.     In  satisfaction  of  the  ba- 
lance thus  struck,  and  in  pursuance  of  McGregor's  desire,  Ker 
gave  his  bond,  (3,750/.  of  which  had  been  paid  to  one  William 
Maxzveli;)  and  for  the  residue  the  joint  bond  of  himself  and 
wife,  payable  one  year  after  date,  with  interest  at  six  per 
cent,   to   Isabella    S.    Fotheringham,  between    whom    and 
McGregor  a  treaty  of  marriage  at  that  time  subsisted.  Within 
two  months   after  settling   the  above  account  in  the  ante- 
cedent manner,  it  appeared  on  a  more  accurate  investiga- 
tion, that  some  errors  had  crept  in,  which  were  by  consent 
rectified,  and  by  an  endorsement  on  the  last  mentioned  bond, 
the  amount  was  reduced  to  10,507/.  0..  6d.       On  the  10th  of 
November,  1796,  the  bond  and  mortgage  from  the  respond- 
ents to  McGregor,  were  assigned  to  him  by  the  appellant 
Swartwout,  in  part  payment  for  an  estate.     Of  this  assign- 
ment Ker   had  notice  about  the  last  of  November,  1796. 
Swartwout  owing  a  large  debt  to  the  other  appellant  Leake, 
in  order  to  secure  its  payment,  assigned  to  him  the  bond 
and  mortgage  from  the  respondents.     From  an  answer  of 
.   the  respondent  *  Ker  to  a  bill  filed  against  him  and  others  by 
the  assignees  of  Coll  McGregor,  it  appeared  that  in  January, 
1798  Coll  McGregor,  (between  whom  and  Miss  Fothering- 
ham a  coolness  then  subsisted,)  demanded  of  Ker  the  bond 
which  he  and  his  wife  had  executed  to  her.    In  consequence 
of  this,  Ker  obtained  the  bond  from  Miss  Fotheringham, 
and  carried  it  to  McGregor,  in  whose  presence  it  was,  with 
his  consent,  cancelled  and  burnt.     Shortly  after  this  transac- 
tion, an  account  was  again  stated  between  McGregor  and  Ker 
on  which  the  latter  was  found  indebted  to  the  former  10,507/. 


*  75 


&  CASES  IN  ERROR  IN  THE 

ALi804NY'      exclusive  of  a  loan  of  $5,000.   In  satisfaction  of  these  sums, 
K^^^y^^J    Ker,  with  the  concurrence  of  McGregor,  destroyed  a  decla- 

John  G.  Leake    ration  of  ^  frQm  the  fo^  for  townshjp  Nq>  ^  jQ  ^ 

B.  Swanwout    sup's  patent.     After  this,  the  settlement  thus  made,  was,  at' 
M.  L.  Wooiscy   the  request  of  McGregor,  waived  by  Ker,  who  having  a  bond 

and  others.  i  r 

and  mortgage  from  one  Hamilton  and  others  to  himself,  as- 
signed them  over  to  McGregor  in  full  of  all  demands. 
McGregor  died  since,  insolvent.  The  bill  below  was  against 
the  respondents  for  payment  of  the  debt  of  8,241/.  10s. 
with  interest,  or  that  they  might  be  foreclosed.  The  Chancel- 
lor ordered  that  CochrarCs  one-tenth  should  be  considered  as 
paid,  and  that  it  should  be  referred  to  the  master  to  re- 
port, after  deducting  his  one-tenth,  what  was  due  on  the 
mortgage  ;  and  that  the  same  should  be  paid  by  the  original 
obligors.  For  this  decree  his  Honor  thus  assigned  his  rea- 
sons: 

Mr.  President— In  my  opinion,  the  mortgage  and  bond, 
being  the  joint  act  of  all  the  parties,  could  not,  as  far  as  re- 
spected their  respective  interests,  receive  a  new  modifica- 
tion without  the  consent  of  all.  It  was,  however,  compe- 
tent to  M'Gregor  to  receive  the  portions  of  one  or  more  of 
the  obligors,  and  to  credit  the  amount  paid,  which,  though 
placed  to  the  account  of  all  the  obligors  as  so  much  paid  of 
the  debt,  generally,  would,  if  the  whole  proportion  of  the  per- 
son paying  was  satisfied,  operate  to  discharge  him  in  any 
action  for  contribution  between  themselves.  The  operation 
of  a  release  to  one  of  the  parties  to  a  joint  contract,  to  dis- 
charge all,  is  stricti  juris  ;  it  is  on  the  ground  of  a  presum- 
ed satisfaction,  and  severance  of  contract  which  it  implies. 
But  though  this  is  the  doctrine  of  strict  law,  the  same  degree 
of  rigour  is  not  extended  to  devices  calculated  to  produce  the 
1  Ld.  Itaym.  same  effect  in  a  more  circuitous  mode.  So  a  covenant  not  to 
m  76  sue,  cannot,  it  has  *been  held,  be  taken  advantage  of  at  law,  by 

•way  of  release.  It  is  evidently  in  the  power  of  a  person  hold- 
ing a  joint  contract,  so  to  direct  a  suit  on  it,  as  to  charge  only 
one  or  more  of  the  joint  contractors,  and  is  every  day's  prac- 


STATE  OF  NEW-YORK.  76 

tice  at  law ;  and  the  only  remedy  of  the  persons   against     ALf8£? ' Y' 
whom  the  recovery  is  had,  is  to  enforce  a  contribution  from    v«-—v-^^/ 
their  contractors,  not  affected  by  the  recover}-.     If  however    John  G.  Leake 
those  have  already  satisfied  their  full  proportions,  no  injury   B.Swartwotrt 
having  arisen  to  the  persons  subject  to  such  recovery,  there    m.  L.  Wooisey 
is   no    point   on  which  they   can  rest  their  claim  to  con-     an 
tribution.     If  this  may  be  done  tacitly,  I  can  discover  no 
good  reason  why  it  should  not  be  the  legal  object  of  a  cove- 
nant indirectly  to  avoid  a  process  for  contribution.     If  the 
endorsement  in  this  case  had  acknowledged  the  receipt  of  a 
sum  of  money  equal  in  amount  to  Cochran'' s  one-tenth  of  the 
debt,  it  would  not  be  deemed  prejudicial  to  the  interests  of 
the  co-obligors  ;  and  whether  it  was  actually  paid  in  money, 
or  agreed  to  be  credited,  on  an  arrangement  between  them, 
to  substitute  some  other  object  existing  in  property  on  con- 
tract, could  be  of  no  consequence  to  any  others  than  those, 
who  were  the  parties  to  the  transaction  making  such  substi- 
tution.     Assuming  it  then  as  legal,  as  well  as  equitable,  in 
certain  cases  to  permit  the  person  complying  with  what  ir. 
deemed   his  full  proportion  of  duty  on  his  contract,  to  be 
virtualy,  though  not  formally,  discharged  by  the  agency  of 
the  person  with  whom  the  joint  contract  is  made,  the  next 
question  is,  What  was  the  operation  of  the   agreement  in 
this   instance  ?     The    endorsement,   both  in  the  bond  and 
mortgage,  is,  "I  acknowledge  and  accept  of  George  AVr,  in 
"  lieu  of  the  share  which  Robert  Cochran  holds  in  the  uith- 
u  in  bond."     This  part  of  the  agreement  is  inaccurate  in  its 
language  :  it  speaks  of  acknowledging  and  accepting  of  Ker, 
in  lieu  of  Cochran's  share,  which  it  is  said  he  holds  in  the; 
within  bond ;  but  however  inapplicable  the  term  hold  may- 
be, as  descriptive  of  a  duty,  the  former  part  of  the  sentence 
distinguishes,  not  the  person  of  Ker,  as  instead  of  that  of 
Cochran,  but  with  precision,  the  acceptance  of  the  person  of, 
Ker,  in  lieu  of  the  share  of  Cochran ;  this  is,  in  my  opinion, 
a  strong  mark  of  the  intent.     There  were  ten  obligors,  and 
from  the  silence  of  the  securities  as  to  the  inequality  of  inte- 
rest, or  obligation  in  discharge  of  the  debt,  I  think  it  is  a  legal 


76  CASES  IN  ERROR  IN  THE 

ALBANY,      inference,  that  all  were  equally  to  contribute  to  its  discharge  j 

\_^     _^_,    *there  is  no  allegation  of  such  inequality,  and  all  the  an- 

John  G.  Leake  swers  concur  in  representing  the  debt  as  an  equal  one  on  all 

and 

B.  Swartwout    the  parties.     If  this  is  admitted,  the  share  of  Cochran  was 

M.  L.  Wooisey  susceptible   of   exact  liquidation  by  a  simple   arithmetical 

process,  which  only  was  necessary  to  reduce  it  to  certainty. 


*  *y  If  so,  the  share  of  Cochran,  in  language,  is  as  little  subject 

to  doubt,  as  if  the  parties  had  expressed  themselves  in  the 
more  definite  terms,  of  the  precise  number  of  dollars  in- 
tended to  be  considered  as  satisfied  ;  and,  whether  the  ac- 
knowledgment was,  that  he  had  received  a  certain  sum,  or 
that  he  had  made  an  arrangement  to  credit  a  certain  sum, 
in  consequence  of  Kerys  responsibility  to  him,  does  not,  in 
my  opinion,  materially  vary  the  situation  of  the  parties. 
In  both  cases,  the  other  parties  might  be  called  upon  to 
adjust  the  difference  of  payment  by  contribution,  if  in  the 
event  of  a  suit  on  the  joint  contract,  an  additional  sum 
should  be  exacted  from  him,  beyond  his  proportion.  By 
way  of  fixing  this  intent  more  determinately,  it  is  added, 
that  he  looks  to  said  Ker  for  his  proportion  accordingly. 
This  looking  to  Ker  for  his  proportion  of  Cochran's,  seems 
to  be  in  pursuance  of  the  same  idea;  not  that  he  looked  to 
Ker  as  a  substitute  in  the  contract  for  Cochran,  but  to  Ker 
for  the  proportion  of  Cochran.  Indeed,  it  can  scarcely  be 
presumed,  that  the  parties  could  have  supposed  a  complete 
substitution  legally  practicable ;  it  could  not  have  entered 
into  their  imagination,  that  Ker  could  be  considered  as  a 
co-obligor  with  the  others ;  and  if  not,  the  mortgage,  be- 
ing merely  a  collateral  security  for  its  discharge,  must  be 
considered  as  invalid  to  the  amount  of  the  satisfaction  on 
the  bond.  I  do  not,  however,  mean  to  assert,  that  it  was 
not  in  the  power  of  the  parties  so  to  modify  this  transac- 
tion, as  to  retain  the  lien  on  the  lands,  and  virtually  to  dis- 
charge the  person  of  Cochran;  yet  that  if  this  was  done  by 
way  of  release,  it  would,  in  legal  operation,  destroy  the 
whole  instrument,  cannot  be  urged  with  effect  against  the 
mode  adopted  by  the  parties.     The  complainants  received 


STATE  OF  NEW-YORK.  77 

the  bond  and  mortgage  with  the  endorsement  to  them,  cal-  ALBANY, 
culated  to  disclose  the  nature  of  this  transaction.  What-  r^^^^y 
ever  might  be  the  consideration  or  inducement  as  to  Ker,  John  G.  Leaka 
the  contract  made  with  Cochran,  and  his  parting  with  his  B.  Swtwotrt 
share  of  the  land  to  Ker's  wife,  was  a  sufficient  considera-  M.L.\vooisey 
tion  as  to  him;  and  whatever  complexion  the  business  J^_°l^_ 
might  assume,  as  between  McGregor  and  Ker,  the  *right  *  78 

of  creditors  not  being  affected  by  it,  it  could  have  no  re- 
trospective effect,  so  as  to  avoid  the  contract  made  with 
Cochran.     As  between  Cochran  and  McGregor  it  was  con- 
clusive, and  it  does  not  lie  in  the  mouth  of  the  complain- 
ants, now  representing  McGregor,   to  set  up  subsequent 
transactions,  to  which  Cochran  was  a  stranger,  to  impeach 
a  bargain  which  he  is  interested  in  maintaining,  nor  ought 
they  to  be  permitted  to  charge  the  other  mortgagors  with  a 
sum  of  money,  which  the  person  from  whom  they  derive 
their  rights  has  relinquished,  as  part  of  the  money  secu- 
red by  this  mortgage.     It  cannot  therefore  be  necessary  to 
trace   the  winding  steps  of  McGregor,  Ker,  his  wife,  and 
Miss  Fotheringham,  detailed  in  the  answers  of  the  latter  in 
another    cause,  which  were  used  at  the  hearing  ;  for  all 
those  relate  to  transactions  subsequent  to  the  agreement,  in 
consequence  of  which  the  endorsement  was  made,  and  can- 
not possibly  affect  it.     The  letters  of  the  several  defendants 
are  conceived  in  general  terms,  and  nothing  is  to  be  col- 
lected from  them  prejudicial  to  their  interests ;  for  the  ex- 
pressions in  these  letters  would  equally  apply  to  half,  or  a 
smaller  portion  of  the  money  secured,  if  no  more  remained 
unpaid  ;  but  a  better  reason    is,  that  supposing   Cochran's 
share  satisfied,  no  act  of  theirs,  as  against  the  other  mort- 
gagors, could  place  it  in  statu  quo,  nor  could  it  possibly  re- 
place Cochran,  as  a  party  liable.     And  if  not,  it  would  cer- 
tainly be  very  inequitable  to  compel  them  to  pay  his  propor- 
tion,' without  a  possibility  of  resorting  to  him  for  a  con- 
tribution.    From  this  train  of  reasoning,  I  am  of  opinion 
that  Cochran's  one-tenth  must  be  considered  as  paid,  and 


78  CASES  IN  ERROR  IN  THE 

ALBANY,      that  it  be  referred  tea  master  to  report  the  sum  due,  re- 

1804.  ...  , 

t  _    y    jecting  the  one-tenth. 

John  G.  Leake 

B.  Swartwout         Against  this,  the  appellants  contended,  1st.  That  what- 

M.  L.  \iooisey    ever  might  be  the  effect  of  the  agreement  between  M'Gregor, 

and  others.      Cochran,  and  Ker,  upon  the  bond,  at  all  events,  the  land 

remained  liable,  as  Ker  took  Cochran's  conveyance,  subject 

to  the  mortgage.     2d.  That  the  settlement  with  M'-Gregor^ 

by  Ker,  was  fraudulent,  and  after  notice  of  his  assignment, 

as  was  evident,  1st.  From  the  non-production  by  McGregor 

of  the  bond  and  mortgage,  at  the  time  of  this  pretended 

settlement ;  and  was  in  itself  a  sufficient  reason  to  presume 

an   assignment.      2d.    From    the    known     insolvency    of 

McGregor.     3d.  That  allowing  the  first  settlement  to  have 

been  good,  still,  when  the  bond  to  Miss  F other  ingham  was 

*  79  given  up  and  cancelled,  it  was  *as  if  it  had  never  been  in 

existence,  and  then  the  subsequent  settlement  was  clearly 

fraudulent,  being  after  notice  admitted. 

On  behalf  of  the  respondents  it  was  insisted,  That  the 
words  of  the  endorsement  clearly  exonerated  the  land  from 
Cochran's  proportion,  McGregor  having  thereby  accepted 
Ker  as  his  debtor  for  that  amount.  That  this  was  evident, 
1st.  From  the  account,  in  which  Ker  is  charged  1,100/.  for 
the  land  held  by  him,  with  Piatt  and  others.  2d.  The  mo- 
ney due  on  the  bond  and  mortgage  was  not  payable  till  the 
expiration  of  two,  three,  four,  and  five  years,  but  on  the 
bond  given  by  Ker  it  was  due  in  one  year.  3d.  The  re- 
turn of  the  200/.  to  Cochran,  evinced  a  new  transaction,  in 
which  the  original  liability  of  Cochran  w*as  done  away. 

Harison,  for  the  appellants.  It  is  contrary  to  reason,  to 
suppose  landed  security  should  be  relinquished  for  per- 
sonal. The  intention  of  the  parties,  from  the  words  of  the 
endorsement,  was,  that  the  person  of  Ker  should  be  sub- 
stituted for  that  of  Cochran,  but  that  the  land  should  re- 
main charged.     The  estate  in  it  was  vested  in  M'Gregor  by 


STATE  OF  NEW-YORK.  79 

the  mortgage,  and  it  could  not  be  devested,  without  a  com-      ALBANY, 
pliance  with  the  condition.     It  was  impossible  to  effect  this     ^^ .— w/ 
by  the  endorsement ;  for,  nothing  short  of  payment   is  a   Johu  %£"** 
performance  of  the  condition.     The  estate  of  the  mortga-    R-  Swwrtwwit 
gee,  on  executing  the  deed,  passes  out  of  the  mortgagor,    M^^^" 

and  upon  common  law   p.inciples,  the  mortgagee  is  seised  

of  the  fee,  defeasible  by  performance  of  the  condition.     1 
Pow.  on  Mort.  226.     If  then  the  estate  was  in  McGregor 
till  performance  of  the  condition,  and  that  condition  is  now 
unperformed,  the  estate  thus  in  him  passes  to  his  assignee, 
from  whom  we  claim,  and  would  be  entitled,  in  an  eject- 
ment, to  set  up  this  our  title.     Co.  Litt.  206  to  208.  b.  Till 
a  reconveyance,!  the  legal  estate  remained  in  the  mortga-  fSeeante,  p.  53- 
gee  and  his  assignees.     But  it  is  contended,  that  the  set-  n0  e  '' 
tlement  made  between  Ker  and  McGregor,  is  equivalent  to 
a  payment  pro  tanto,  and  conclusive  on  the  appellants.     We 
insist,  however,  from  the   facts,  that  it  appears  Ker  had 
notice  of  the  assignment  by  McGregor,  and  that  any  pay- 
ment afterwards  made  by  Ker  was  in  his  own  wrong.     In 
order  to  affect  with  notice,  it  is  not  necessary  that  it  should 
be  written.!     If  the  circumstances  be  such  as  ought  to  in-  $  whatever    is 
duce  an  inference  that  an  assignment  had  been  made,  it  is  tL-'party  on  In- 
sufficient.    The  absence  of  the  bond  and  mortgage,  on  the  jgg  \« \  c™»f  \ 
■*first  pretended  settlement,  was  equal  to  this.     But  on  the  :**■  48<J-    And 

r  »  ^  it    a    mortgagee 

second,  when  the  first  was  cancelled,  a  new  bond  and  new  be  affected  with 

...  notice,     his    as- 

modes  of  payment  adopted,  the   notice  is  admitted.     On  ugnoe  will  take 

.  .  .  ,  r  -r  i  ..l.      j        subject      to     it. 

this  point,  therefore,  if  on  no  other,  we  conceive  the  de-  whaiicyv.Whai- 

,  ,  ley.  1  Kent.  484. 

cree  must  be  reversed.  *  *  80 

Pendleton,  contra.  It  is  needless  to  say  any  thing  on  the 
necessity  of  a  reconveyance,  to  revest  the  estate  of  the 
mortgagor.  For  what  has  been  urged  on  that  head,  ap- 
plies only  to  cases  where  there  has  been  a  forfeiture,  and 
the  estate  rendered  absolute  in  the  mortgagee.  Here, 
however,  if  the  estate  is  discharged  from  the  tenth  of  the 
mortgage-money,  it  is  by  a  payment  made  before  forfeiture. 


80 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1804. 


John  <t.  Leake 


M.  L.  Wool  sty 
am!  others. 


The  first  instalment  on  the  bond  was  due  in  June,  1 798, 
The  most  disputed  settlement  by  Ker,  was  in  the  January 
antecedent.  But  the  payment,  as  it  in  fact  was,  which 
II.  Swartvoitt  then  took  place,  was  not  of  the  money  due  on  the  bond  and 
mortgage.  That  had  been,  as  to  Cochran  and  his  substitute 
Ker,  previously  satisfied  by  the  bonds  in  June,  1796,  at 
which  time  McGregor  was  owner  of  both  bond  and  mort- 
gage. The  transaction  which  then  took  place  was  a  com- 
plete act ;  and  surely  at  that  time  he  had  a  right  to  take 
payment  of  his  mortgage-money  in  any  way  he  pleased. 
He  did  then,  on  that  day,  as  appears  from  the  account  in 
his  own  hand-writing,  receive,  in  a  manner  pointed  out  by 
himself,  payment  of  1,100/.  from  Ker,  for  the  2,000  acres 
of  land,  held  by  him  with  Piatt  and  others,  the  very  identi- 
cal share  of  Cochran  in  the  original  purchase  from  M'Gre- 
n-or.  The  subsequent  assignment  to  Szvartxvout  f  could 
never  defeat  this  payment,  thus  fairly  and  fully  made.  Af- 
ter this  settlement,  so  perfected  and  carried  into  execution, 
whether  the  bond  by  which  it  was  effected  was  destroyed, 
or  in  whatever  way  satisfied,  nothing  which  took  place  re- 
lating to  it  could  revive  rights  long  previously  extinguish- 
ed, and  that  in  favour  of  persons  who  then  had  none.  By 
the  words  of  the  endorsement,  Ker  was  substituted  for 
Cochran's  portion  in  the  bond ;  for  that  portion  the  land 
was  only  a  security  ;  when,  therefore,  that  portion  was 
paid  by  the  bond  to  Maxwell,  (which  has  been  fully  dis- 
charged,) and  the  bond  to  Miss  Fotheringham  given  for 
the  collective  debt  of  Ker,  the  land  was  necessarily  exo- 
nerated. In  the  endorsement,  M'-Gregor  says  he  looks 
to  Ker.  This  is  a  strong  declaration  that  he  does  not 
look  to  the  land.  If  so,  it  is  a  criterion  on  which  the  ex- 
position *of  the  endorsement  is  to  be  made.  For  in  expo- 
sitions, the  intent  is  the  governing  principle.  3  Atk.  135.f 
And  that  the  intent  should  be  to  look  to  the  person  olKer, 
is  not  so  surprising,  if  we  consider  Kerys  personal  transac- 
tions with  M'-Gregor  then  amounted  to  16,000/.     Besides, 


*  81 

+  Smithy.  Park' 
Ititrst. 


STATE  OF  NEW-YORK.  81 

there  was  an  inducement  to  accept  Ker*&  personal  security,      auuxy, 
and  exonerate  the  land.     It  accelerated  the  payment  five    ^J^Z^s 
years.     The  rate  of  interest  wasaltered  from  1  to  6  per  cent.  J°*>"  {-J  : "-< 
How  then  could  land  continue  liable  for  a  sum  at  seven  per    B.  Swanwout 
cent,  when  a  bond  was  given  for  the  same  sum  at  six  ?     It  m.  l.  \\ 

is  plain,  that  to  obtain  payment  at  an  early  day,  the  land  and 

one  per  cent,  was  given  up.  To  discharge  land  cf  a  mort- 
gage debt,  any  common  parol  declaration  or  discharge  is  suffi- 
cient. 1  Pozv.  on  Mort.l  87.  The  endorsement  therefore  is 
adequate.  Then,  if  the  debt  was  discharged,  the  land  fol- 
lowed of  course.  Martin,  ex  dem.  Weston,  v.  MowUh,  2  Burr, 
979.  On  this  principle  the  doctrine  of  notice  will  apply 
most  forcibly  to  the  appellants.  The  endorsement  on  the 
bond  and  mortgage  purported  an  exoneration  of  the  I 
and  the  personal  substitution  of  Ker.  The  assignees,  there- 
fore, of  such  bond  and  mortgage,  received  them  after  a  lull 
notice,  written  on  the  instruments.  The  subsequent  pay- 
ment of  a  prior  personal  substitution  for  the  share  of  Coch- 
ran, could  not  revive  those  rights,  which  that  personal  sub-, 
stitution,  and  the  bonds  thereon  given,  had  extinguished. 

Hamilton,  in  reply.  It  is  on  that  subsequent  payment  we 
think  we  have  a  right  to  rely.  When  it  was  made,  Ker  had 
full  notice  of  the  assignment  to  Swartwout.  Instead  of  set- 
tling, or  paying  as  it  is  termed,  he  should  have  withheld, 
till  convinced  that  his  payments  would  not  prejudice  the 
rights  he  knew  were  transferred  to  Szvarlwout.  Actmg 
otherwise,  evinced  a  spirit  of  favouritism.  On  the  point  of 
substitution  by  the  endorsement  and  conveyance,  it  must  be 
held,  that  when  Ker  took  the  estate  and  place  of  Cochran,  he 
took  them  with  all  the  liabilities  they  were  under,  when  held 
^ed  by  him,  into  whose  shoes  he  stepped.  If  the 
payment  of  a  proportion  of  the  mortgage  by  Cochran,  would 
not  extinguish  in  McGregor  the  right  to  charge  all  the  land 
with  the  residue,  it  could  not  when  made  by  Ker,  depnvq 
him  of  it.  Therefore,  allowing  the  substitution  in  the  full- 
est extent,  and  the  tota  lexoncration  of  Cochran,  that  was  no, 


81  CASES  IN  ERROR  IN  THE 

ALBANY,      discharge  of  the  land.     All  that  can  be  effected  by  the  pay- 
,Jku*_,    mcnt  of  Ker,  is  a  diminution  *of  the  charge  on  the  land,  not 
join.  li.  Lc.ke  a  diminution  of  the  land  charged.     If,  by  his  proportion 
E.  Svar'twout    continuing  liable,  he  pays  twice,  that  is  a  matter  of  contri- 
M.  L  Woohey  bution  between  him  and  his  coobligors,  but  nothing  to  us, 
and  01 -cis.      wno  receivc  oniy  our  original  sum.     At  law,  the  endorse - 
ejTgij  ment  could  never  operate  to  discharge  the  person  of  Cochran  ; 

in  equity  it  might.  But  in  equity  it  never  would  be  con- 
sidered as  being  a  pro  tanto  discharge  of  the  land  from  the 
mortgage.  Therefore,  though  equity,  perhaps,  would  not 
have  allowed  MGregor  to  proceed  against  the  person  of 
Cochran,  it  would  have  permitted  a  foreclosure  against 
Cochra'Ss  share  in  the  hands  of  Ker.  If  this  would  have 
been  endured  in  McGregor,  certainly  in  his  assignee.  The 
whole  of  the  settlements  relied  on,  are  bonds  for  bonds,  and, 
therefore  no  payments.  The  facts,  however,  warrant  a  pre- 
sumption, that  the  bond  to  Miss  Fotheringham  was  in  con- 
sideration of  marriage,  and  as  a  portion  ;  when  the  marriage 
did  not  take  effect  the  consideration  failed,  and  the  money 
intended  to  be  secured  to  Miss  Fotheringham  became  due 
to  MGregor,  as  his  original  property  in  the  bond  and  mort- 
gage. To  pay  money  for  that  proportion  of  the  bond  and 
mortgage  afterwards  to  McGregor,  was  to  make  a  payment 
on  that  which  Ker  knew  was  assigned  tp  the  respondent 
Swartwout.  It  consequently  was  done  in  his  own  wrong, 
and  we  have  a  right  to  look  for  the  whole  amount  from  the 
persons  bound,  and  all  the  land  originally  charged. 

The  majority  of  the  court  being  of  opinion  with  the  Chan- 
cellor, for  the  reasons  he  assigned,  it  was  ordered  that  the 

DECREE  BE  AFFIRMED. 

Spencer,  J.  contra.  The  questions  arising  in  this  cause, 
are  principally — 1st.  What  is  the  legal  effect  of  the  endorse- 
ment made  on  the  bond  and  mortgage,  given  to  Coll 
M'-Gregor  by  Robert  Cochran  and  nine  others,  whereof  Ker  is 
not  one,  in  these  words  :" "  I  acknowledge  and  accept   of 


STATE  OF  NEW-YORK.  82 

George   Ker,  Esq.  in  lieu  of  the  share  which   Robert  Coch-        ALBANY, 
ran  h  olds  in  the  within  bond,  and  look  to  said  Ker  for  his    v^^^/ 
proportion  accordingly.     New-Tor k,^th  February,  1796."  W-  <*Ldfc 
2d.  Whether,  from  posterior  transactions,  the  appellants  have    B.  Swartwout 
lost  th.ir  right  to  insist  on  the  mortgage   as  a  security,  as  M.  L.  Wo<>isey 

well  for  the  nine-tenths,  as  for  the   one-tenth  part  of  the 

money  thereby  secured,   and  due  from  Cochran,  provided 
the  above  endorsement  did  not,  in  judgment  of  law,  operate  ^  ^ 

to  discharge  Cochran's  *share  due  on  the  mortgage  ?  I  shall 
consider  the  first  question  independently  of  the  alleged   un- 
derstanding of    the    parties.      This,    for   three   reasons  ; 
1st.  Because  this  is  not  a  controversy  between  the  original 
parties  to  that  transaction,  (McGregor  and  Ker,)  but  between 
the  assignee  of  the  former  and  Ker.     When  this  assignment 
was  made  to  Swartwout  by  McGregor,  it  was  for  the  whole 
sum  expressed  in  the  mortgage.     The  endorsement,  to  be 
sure,  was  on  it ;  and  by  the  true  exposition  of  that  endorse- 
ment, was  his  interest  and  right  acquired  in  it  to  be  deter- 
mined, without  reference  to  any  conception  of  the  parties, 
as  to  the  operation  of  that  endorsement.     2d.  Because  parol  "a^%uem  "s 
evidence,  substantially  to  vary  or  impugn  an  agreement  in  £•  ^<*;  2£S 
writing,  even  as  between  the  same  parties,  cannot  be  admit-  .tth.SH3.UMt. 
ted,  much   less  between  one  of  the  parties  and  a  third  per- 
son, who  has  acquired  a  right  under  such  agreement.     3d. 
Because,  whatever  M'Gregor  might  say  in  relation  to  his 
understanding  of  the  intent  and  operation  of  the  endorse- 
ment, ought  not  to  be  regarded  ;  he  having,  for  a  full  ami 
valuable  consideration,  assigned  the  mortgage  as  due  in  toto  ; 
his  subsequent  declarations  to  the  contrary,  would  evince 
that  he  had  been  guilty  of  a  fraud  in  that  assignment,  and 
this  would  justly  derogate  from  his  testimony.     If  the  rule, 
that,  in  assignments  of  choses  in  action,  the  assignee   takes 
them  subject  to  all  the  equity  between  the  parties,  does  ob- 
tain upon  the  assignment  of  a  mortgage,  and  of  which  per- 
haps there  is  doubt,  still  it  cannot  reach  a  case  of  this  kind, 
where  the  parties  wholly  relied  on  a  written  stipulation,  and 
must  be  bound  by  its  construction.     The  endorsement  will 


83  CASES  IN  ERROR  IN  THE 

ALBANY,      not  admit  of  a  literal  construction.     Cochran  held  no  share 
K^^^m^j    in  the  bond,  but  was  held  by  it  to  the  payment  of  the  sum 

■ln!m  ^dLeakc  expressed.     M'Gregor  accepted  Ker  in  lieu  of  Cochran  in 
B.  Suamrout    the  within  bond, and  was  to  look  to  him  for  his  proportion 

M.  l.  Wooisey  accordingly.     It  is  to  be  recollected,  that  the  endorsement 
n "  was  bothjon  the  bond  and  mortgage  in  the  same  words  ;  and 

it  is  to  be  presumed,  because  universally  the  case,  that  the 
mortgage  had  reference  to  the  bond ;  and  no  reason  can  be 
assigned  why,  when  the  endorsement  was  made  on  the  mort- 
gage, Ker  should  be  accepted  in  lieu  of  Cochran,  as  to  his 
liability  on  the  bond  only,  if  the  parties  had  intended  that 
McGregor  was  to  renounce  the  real  security  he  held.  The 
expression  of  the  one  is  the  exclusion  of  the  other,  especially 
when    this    endorsement  is  made  on  the  mortgage,  and  re- 

*'  s*  fers  *to  a  bond.     If  collateral  facts,  existing  at  the  time  of 

the  transaction,  be  resorted  to,  and  if  we  jare  to  imagine 
McGregor  actuated  by  his  interests,  these  considerations 
would  unite  in  evincing  that  it  could  not  have  been  his  in- 
tention to  waive  the  security  he  had,  but  merely  to  substitute 
Ker  for  Cochran,  so  far  only  as  regarded  personal  respon- 
sibility. But  in  making  up  my  opinion  on  this  point,  I  put 
out  of  view  these  circumstances,  and  look  to  the  words  of 
the  endorsement,  as  the  only  true  indicia  of  the  intention  of  the 
parties.  The  agreement  only  extends  to  the  bond,  and  I 
cannot  say,  in  contradiction  to  that,  the  parties  meant  the 
mortgage.  Have  subsequent  transactions  varied  the  case 
so  far,  as  that  either  the  debt  has  been  forgiven,  the  bond 
discharged,  as  respected  Cochran's  proportion  of  the  debt, 
or  the  mortgage  reduced  by  as  much  as  that  proportion  I 
The  respondents  rely  much  on  the  exhibition  of  an  account 
by  M'Gregor  against  Ker,  in  June,  1 79G,  wherein  he  char- 
ged the  latter  of  Cochran's  proportion  of  the  bond  and 
mortgage,  and  also  upon  the  execution  of  a  bond  by  Ker  and 
his  wife,  to  Miss  F other  ingham,  by  the  directions  of 
McGregor,  as  a  further  security  from  Ker,  for  Cochran's 
proportion  of  the  debt  in  the  bond  and  mortgage,  payable  at 
a  shorter  period,  and  at  a  different  rate  of  interest  than  was 
3 


STATE  OF  NEW-YORK.  84 

required  by  the  bond  and  mortgage  given  by  the  respond-      ALBAN1, 
ents  originally  to  McGregor.     These  transactions  are  relied    ^J^^y 
on  in   two  points  of  view:  first,  as  evidence  that  Cochran    John  G.Leake 

„  anil 

was  discharged  from  his  liabihtv  ;  and,  secondly,  as  an  ex-    B.  Swartwcut 
tinguishment  of  the  debt  so  due  from  Cochran.     As  regards    M  L  Woetaef 
the  first,  I  am  clearly  of  opinion  that  the  endorsement  on      a,ul  o!hers' 
the  bond  and  mortgage   did  not,  in  law,  exonerate  Cochran 
from   his  liability.      In  the   case  of  Rogers  v.  Payne,  2  jvr.    192.     6 
P.  Wms.  376.  an  action  of  covenant  was  brought  lor  the  non-  case.    cv«.  Jac. 
payment  of  a  sum  of  money,  the    defendant  pleaded  a  dis-     . 
charge,  in  the  nature  of  a  release  without  deed,  in  satisfac- 
tion of  all  demands.     Upon  demurrer,  it  was  objected  for 
the  plaintiff,  that  the  plea  was  ill ;  for  that  a  covenant  to  pay 
money, which  is  by  deed,  cannot  be  discharged  without  deed, 
and  of  that  opinion  was  the  court,  and  gave  judgment  for 
the  plaintiff.     If,  then,  the  endorsement  only  affected   the 
bond,  and  if  that  could  not,  in  law,  be  discharged  without 
payment  or  release,  it  follows,  that  the  endorsement  can  in  no 
way  have  effect.     As  respects  the  extinguishment,  nothing 
can  be  more  clear  or  better  settled,  than  that,  to  extinguish 
*a  debt,  something  of  a  higher  nature  than  the  debt  to  be  #  8j 

extinguished  must  be  given.  To  give  one  bond,  for  a  debt 
secured  by  another,  is  no  extinguishment.  Had  the  bond 
given  by  Ker  and  wife  to  Miss  Fotherlngham  been  paid,  the 
case  indeed  might  have  been  materially  changed  ;  but  after 
the  assignment  of  the  bond  and  mortgage  by  M'Gregor  to 
Swartivout,  and  after  notice  from  the  latter  to  Ker,  the 
bond  to  Miss  Fotheringham  was,  at  the  instance  of  M'Gre- 
gor, given  up,  cancelled  and  burnt ;  and  when  Ker  might 
and  ought  to  have  regarded  the  notice  from  Sxvartwout,  that 
the  whole  mortgage  was  his,  and  he  alone  entitled  to  be 
paid,  he  proceeded  to  enter  into  other  arrangements  to  pay 
McGregor ;  and  now  insists  on  such  payment,  made,  as  I 
conceive,  in  his  own  wrong.  Had  MGregor  retained  the 
bond  given  to  Miss  Fotheringham,  after  it  was  in  his  custo- 
dy, and  then  insisted  on  Ker\t  providing  differently  for  the 
payment  of  it,  the  case  would  have  been  very  different  from 


85 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1S04. 


John  G.  Leake 

and 
B.  Swartwout 

v. 

M.  L.  Woolsey 

and  others. 


what  it  is ;  but  that  bond  was  destroyed,  Ker  then  was  at 
liberty  to  have  refused  paying  M'Gregor  by  so  much  as  the 
amount  of  Cochran's  share  came  to  ;  this  he  did  not,  though 
he  had  notice ;  but  afterwards,  at  a  different  time,  satis- 
fied McGregor ;  first,  by  a  sale  to  him  of  lands  at  100  per 
cent,  more  than  they  cost  him  ;  and  subsequently,  by  assign- 
ing another  bond  and  mortgage.  I  have  paid  due  attention: 
to  the  authority  cited  by  the  respondents'  counsel,  and  I 
agree  with  him,  that  a  mortgage  may  be  discharged  by  pa- 
rol, or  may  be  forgiven,  because  it  is  not  a  c  nveyance  of 
land  within  the  statute  of  frauds ;  but  this  mortgage  has 
never  been  discharged,  or  forgiven,  or  paid,  until  after  it 
was  assigned.  1  agree  further,  that  the  payment  of  the  mo- 
ney will  draw  the  land  after  it,  provided  the  payment  be  to 
the  right  party.  A  bond,  however,  cannot  be  so  discharged. 
On  the  whole,  it  appears  that  the  appei  ants  or  respondents 
must  lose  so  much  as  the  share  of  Cochran  amounted  to. 
The  appellants  gave  a  full  consideration  for  the  mortgage  ; 
the  respondent  Ker  has  paid  to  the  amount  of  Cochran's 
share,  but  he  so  paid  it  to  a  person  not  having  a  right  to  re- 
ceive it,  with  full  notice  not  to  pay  him ;  he  paid  it,  too, 
without *any  legal  necessity,  consequently  he  ought  to  pay  it 
again,  and  to  the  right  person.  I  am  of  opinion,  that  the 
decree  ought  to  be  reversed,  and  that  the  appellants  be  per- 
mitted to  insist  on  a  foreclosure,  as  well  for  the  amount  of 
CochrarHs  proportion  of  the  debt,  as  the  residue  of  the 
mortgage. 


*  86  #Thomas  Jenkins  against  the  President,  Directors, 

and  Company  of  the  Union  Turnpike  Road. 


A  turnpike  act,       ERROR  on  the  judgment  of  the  supreme  court,   in  a 

incorporating    a  .  ' 

company,  with  a  suit  between  the  same  parties,  in  which  the  now  plaintiff  was 

clause       vesting; 

the  road,  on  a  certain  event,  in  the  people,  is-  a  public  act,  lit  semb.  The  mere  subscribing  to 
stock  in  a  turnpike  ecmpany,  where  a  part  of  the  amount  of  each  sin. re  is  ordered  to  b;  paid 
at  that  time,  gives  no  interest  in  the  stock  if  the  money  be  not  paid,  and  the  company  cannot 
bring  an  action  for  the  amount,  as  it  is  nudum  pactum.  A  clause  of  forfeiture  of  shares  sub- 
scribed, takes  away  the  right  of  suing  for  them,  or  money  ordered  to  be  paid  upon.  them. 


STATE  OF  NEW- YORK.  86 


defendant  below,  and  the  now  defendants,  plaintiffs.     The      ALBANY, 

case  was  as  reported  in  1  Gaines's  New-Tork  Reports,  381.    ._^  "_ ^ 

Upon  the  decision  there  pronounced,  the  plaintiff  assigned  Thomas  Jenkins 

the  following  errors:    1st.  That  the  action  being  founded  Union  Turnpike 

.  ,.  ,                   ..                      Company, 
upon  the  act  entitled,  "  An  act  to  establish  a  turnpike  cor- 

poration,  for  improving  the  road  from  New-Lebanon  to  the 
eity  of  Hudson,"  passed  the  3d  of  April,  1801,  as  set 
forth  in  the  declaration,  it  is  not  alleged,  nor  in  any  way  sta- 
ted, that  the  said  Thomas  Jenkins,  at  the  time  of  subscri- 
bing, or  at  any  other  time,  paid  to  the  said  commissioners 
ten  dollars,  or  any  other  sum  of  money,  on  each,  or  any 
share  of  the  said  stock,  by  which  the  said  Thomas  Jenkins 
would  become  entitled  to  the  said  shares.  2d.  That  it 
does  not  appear  by  the  said  declaration,  that  the  parties  were 
mutually  bound  to  each  other ;  but  that  the  said  commis- 
sioners were  at  liberty,  at  any  time  before  the  surrendering 
up  to  the  said  company  the  said  subscription,  to  erase  the 
name  of  the  plaintiff  from  the  said  subscriptions,  and  to  re- 
ceive others  in  the  place  thereof;  nor  does  it  appear  that  the 
said  commissioners,  or  the  said  president  and  directors, 
ever  did  any  act  before  the  commencing  the  action  below, 
by  which  they  were  bound,  or  in  any  shape  liable  to  the  said 
Thomas  Jenkins,  for  the  said  stock,  by  virtue  of  the  said 
subscription.  3d.  That  it  does  not  appear  in  the  said  de- 
claration, that  there  was  any  determination  of  the  president, 
directors,  and  company  of  the  said  turnpike,  for  the  pay- 
ment of  the  said  several  sums  of  money  by  the  said  stock- 
holders, according  to  the  conditions  and  terms  of  the  said 
subscriptions.  4th.  That  the  promises  set  forth  in  the  said 
declaration  are  void,  for  want  of  consideration.  5th.  Ge- 
neral errors.  On  these  grounds  it  was  insisted  the  judg- 
ment ought  to  be  reversed. 

The  defendants  contended,  it  ought  to  be  affirmed  for  the 
following  reasons  :  1st.  Because  it  does  not  appear  on  the 
record,  that  ten  dollars  was  by  the  act  required  to  be  paid 
on  each  share  subscribed,  and,  as  it  does  not  appear,  it  can- 
not be  ^assigned  for   error.     2d.  Allowing  it  might  be  so  *  87 


8r  CASES  IN  ERROR  IN  THE 

ALBANY,  assigned,  as  the  obligation  prescribed  by  the  act  is  to  the  pre- 

v  — 804^  '  sl<ient,  directors,  and  company,  for  the  whole  amount  of 

iW^Ckins  twenty-five  dollars  upon  each  share,  and  as  the  payment  of 

TT  •     .1      .,  ten  dollars  upon  each  share  was   for  the  benefit  and  use  of 

Union  turnpike  r  ^ 

Company.  t^e  company,  the  non-payment  of  this  latter  sum  cannot  be 
assigned  by  the  plaintiff,  as  an  objection  to  the  payment  of 
the  former,  because  he  would  then  be  permitted  to  take  ad- 
vantage of  his  own  wrong.  3d.  Because  the  commis- 
sioners were  authorized  only  to  receive,  and  not  erase  sub- 
scriptions, and  by  admitting  the  subscription,  were  bound  to 
consider  the  plaintiff  a  stockholder,  until  they  should  de- 
clare his  shares  forfeited  ;  and  by  their  calls  upon  him  for 
his  instalments,  they  acknowledged  his  right  to  call  on  them 
for  dividends.  4th.  Because  the  president  and  directors 
are  the  only  organs,  through  or  by  which  the  affairs  of  the 
company  can  be  conducted.  5th.  Because  the  subscription 
passed  to  the  plaintiff  an  interest  and  right  in  the  stock  of 
the  company,  by  virtue  of  which  he  was  entitled  to  divi- 
dends, and  created  therefore  a  consideration  sufficient  to 
support  his  promise,  for  breach  of  which  the  action  was 
brought. 

Woodworth,  Attorney-General,  for  the  plaintiff.     Against 
going  into   the  first  error  we  have  assigned,  the  defendants 
insist,  that  as  the  circumstances  we  there  rely  on  do  not  ap- 
pear on  the  record,  we  cannot  avail  ourselves  of  them,  though 
they  are  specified  and  required  by  the  act  of  incorporation, 
under  which  the  present  suit  was   brought.     To  decide  on 
the  force  of  this  objection,  we  must  inquire  whether  this  be 
a  private  or  a  public  act.     If  it  be  the  latter,  then  the  court 
must  take  notice  of  it,  and  we  may  avail  ourselves  of  all  its 
provisions.     It  is  not  necessary  to  plead   a  general  statute, 
19  Tin.  Abr.  letter  C.  pi  8.     And  every  statuie  is  general 
which  may  apply  to  every  man.     Ibid,  in  notis.     This  is 
clearly  such  a  statute,  for  every  man  may  be  a  stockholder, 
and  every  man  may  use  the  road,  and  must  pay.     So  every 
act  which  concerns  the  king,  though  the  matter  of  it  relate 


STATE  OF  NEW-YOllK.  «7 

to  individual  persons  or  things,  is  a  public  statute,  of  which      ALBANY, 
the  judges  ex  officio  must  take  notice.     Therefore  the  2  Ph.    ^^^j 
&?  M.  concerning  the  trade  of  a  dyer,is  held  to  be  a  public  act,  Thomw  Jeukins 
because  the  forfeiture  goes  to  the  king.     Ibid,  pi  IU  in  no-  Un^,  Turnpike 
tts.     Within  this  principle,  the  act  in  question  must  be  a  __L","1>a">' 
public  act,  for,  after  a  certain  period,t  *by  the  ISth  section,  tj**gfi« 
« the  right,  interest,  and  property  of  the  said  road  shall  be  iaU:rea   at  the 
vested  in  the  people  of  this  state."     Also,  by  the  act  order-  ££  ot  l 
ing  the  publication  of  the  laws,*  the  persons  appointed  to  ^  ?  ^  *J* 
revise  them,  were  directed  as  a  matter  of  "duty,"  to  insert  G20. 
in  a  separate  volume,  the  titles  of  acts  of  a  partial  or  local 
nature.     In  executing  this   direction,  they  have,  in  the  2d 
vol.  Rev.  Laws,  518.  placed  under  a  particular  title  of  "  spe- 
cial** manvlaws;  but  amongst  them  this   is  not  inserted,  {«*•■  **»* 
and  therefore  they  must  have  considered  it  a  public  statute. 
The  court  below  have  acted  on  this  as  a  public  law,  and  re- 
ferred to  it  in  their  decision,  in  consequence  of  the  counsel 
now  opposed  to  us,  having  in  their  argument  treated  it  as  a 
general  statute.     On  the  face  of  this  law,  it  will  not  support 
the  present  suit.     It  prescribes  a  peculiar  remedy,  on  failure 
of  the  party  subscribing  for  stock.     His  shares  are    to   be 
forfeited.     It  was  not  therefore  the  intention  of  the  legisla- 
ture to  permit  an  action  at  law.     The  loss  of  the  ten  dollars 
ordered  to  be  paid,  to  raise  a  fund  of  §20,000  to  commence 
the  road,  and  the  forfeiture  of  the  share,  was  the  punish- 
ment inflicted  by  the  act  for  a  non-compliance  with  the  sub- 
scription engagement.     The  subscription  created  no  con- 
tract, and  gave  no  rights.     It  was  merely  to  ascertain   the 
stock  taken  up.     But  at  all  events,  to  acquire  a  right  in  that 
stock,  the  payment  of  SlO  was  necessary,  and  ought  to  have 
been  averred.     Without  payment,  the  contract  was  nudum 
pactum,  as  it  could  not  be  enforced  against  the  corporation. 
To  give  a  right,  two  acts  were  made  necessary,  subscription 
and  payment.     A  compliance  with  one,  gave  no  title  to  de- 
mand the  stock,  and  unless  both  parties  were  bound,  there 
was  no  contract  in  law.     Cooke  v.  Oxley,  3  D.  fc?  E.  653. 
The  consideration  must  be  apparent  on  the  record,  and  set 


88  CASES  IN  ERROR  IN  THE 

forth  in  the  declaration.  That  the  promise  is  stated  t» 
be  in  writing,  is  not  sufficient^  to  show  a  consideration. 
Tiiomas Jenkins  Rami  v.  Hughes,  7  D.  &  E.  350.  overruling  in  this 
Union  Turnpike  point*  Pillans  v.  Van  Meirop.  Wherever  one  thing  is  to 
Company.  De  lne  consideration  0f  another,  though  there  be  mutual 
f  See  the  note  in  promises,  performance  must  be  averred  and  proved.  CaU 
386 "  '     '  lonel  v.    Briggs,    1   Salk.    112.       The   payment   of    the 

glO  ought,  therefore,  to  have  been  expressly  stated, 
as  it  was  the  sole  ground  of  right  against  the  compa- 
ny. For,  unless  it  was  by  this  means  acquired,  the  pay- 
ment of  the  $10  would  have  been  without  consideration. 
*  89  *The  payment  of  these  §10,  was  a  condition  precedent; 

therefore,  till  that  was  performed,  no  right  could  accrue  to 
rSS*  *'  Jenkins.  1  Salk.  172.%  Goodison  v.  Nunn,  4  D.  £s?  E.  761. 
The  declaration  therefore  should  show  a  tender  and  refusal 
of  the  stock.  The  same  doctrine  is  found  in  1  Fin.  338. 
tit.  Actions  of  Assumpsit,  (Z.  3.)  It  is  not  enough  to  state 
the  demand  of  $5,  on  an  order  by  the  president  and  direct- 
ors. This  does  not  evince  that  the  plaintiff  had  the  stock  ; 
and  if  he  had  not,  he  was  not  obliged  to  pay  the  order.  The 
not  setting  forth  a  due  consideration,  is  matter  of  substance, 
ever  available  of,  and  not  cured   by  a  verdict.     Foster  v. 

I  ?rnhe  V'  Sam'  Smith  Cr0'  Car'  31'  1  SuI'  182>§  Cr0m  Jac'  503'^  Doug. 
«jj    Lenneret    v.  679.**     With  respect  to  the  order  of  the  president  and  di- 

liivet.      Where  .     .  .  .  . 

two  conf-idcra-  rectors,  it  is  sufficient  to  observe,  that  delegated  authorities 
red  on,  perform*  must  be  strictly  pursued.  The  power  is  given  to  the  presi- 
must  be°aiieKedh;  dent,  directors,  and  company,  and  though  only  the  two 
and  if  one  aver-  former  may  be  the  active  parties,  the  order  should  have  been 

xnent    be    good,  '  *■-■;.> 

and    the    other  in  the  names  of  all.     The   defendants  relied  in  the  court 

bad,     judgment  . 

on  a  general  rer-  below,  on  the  contract  of  the  now  plaintiff;  let  them  there- 
rested  fore  confine  themselves  to  it,  and  show  the  breach  within 
ApfnoB.             ^s  letter. 

Williams  and  W.  W.  Van  Ness,  contra.  This  is  an  action 
upon  an  express  written  contract,  subscribed  by  the  plaintiff 
in  error.  Its  form  is  prescribed  by  the  act  incorporating 
the  company.     Its  terms  are  explicit  and  intelligible,  and 


STATE  OF  NEW-YORK.  89 

the  legal  obligation  imposed  by  it,  equally  clear.     The  plain-     ALBANY, 
tiff,  conceiving  that  sufficient  matter  in  law  did  not  appear    v_^  *^j 
upon  the  record  in  this  cause,  to  support  the  judgment  of  the  Thomas  Jenkins 
court  below,  has  assigned  four  specific  causes   of  error,  to  Union  Turnpike 
which  is  added  the   general  assignment.     In  order  more      Company. 
clearly  to   comprehend  the  force  of  these  objections,  it  will 
be  proper  to  read  the  contract  on  which  the  action  is  found- 
ed, as  stated  in  the  declaration.     "  We,  whose  names  are 
hereunto  subscribed,  do,  for  ourselves,  and  our  legal  repre- 
sentatives, promise  to  pay  to   the  president,  directors,  and 
company  of  the  Union  Turnpike  Road,  the  sum  of  twenty- 
five  dollars  for  every  share  of  stock  in  the  said  company,  set 
opposite  to  our  respective  names,  in  such  manner  and  pro- 
portion, and  at  such  time  and  place,  as  shall  be  determined 
by  the  said  president,  directors,  and  company."     Before  ex- 
amining the  errors   assigned,  it   may  be  necessary  to  state 
what  may  be  assigned  for  error,  and  whether  that  which  is 
contained  in  the  first  error  *can  be  the  subject  of  such  assign-  #  90 

ment :  that  is,  whether  matter  dehors  the  record  can  be  as- 
signed for  error,  and  whether  the  matter  now  assigned  does 
appear  on  its  face.     The  errors  all  point  to  supposed  de- 
fects in  the   declaration.     But  if  we  can  show  that  vvh;;t  is 
now  assigned  could  not  have  been  urged  in  arrest  of  judg- 
ment, then  the  court  will  not  reverse  the  judgment.     It  does 
not  appear,/rom  the  record,  that  the  act  contains  one  word 
of  payment  to  be  made  at  the  time  of  subscribing.    It  alleges 
only,  that  the  plaintiiF  did  subscribe ;  not  that  any  sum  of 
money  was  to  be  paid.     Therefore,  nothing  respecting  non- 
payment can  be  assigned  for  error,  unless  permitted  to 
search  the  act  and  travel  out  of  the  record.     The  rule  is, 
nothing  extrinsic,  nothing  which  does  not  appear  on  the  face 
of  the  record,  can  be  assigned  as  error.     It  is  laid  down  in 
3  Black.  Cotnm.  407.  "that  a  writ  of  error  lies  only  upon  mat- 
ter of  law  arising  upon  the  face  of  the  proceedings."     So,  3 
Wooddes.  359,  360.  "  if  either  party  be  dissatisfied  with  the 
judgment  of  the  court  pronounced,  either  on  demurrer  or 
arrest  of  judgment,  (which,  as  already  mentioned,  must  re- 


90 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1804. 


Thomas  Jenkins 

v. 

Union  Turnpike 

Company. 


f  Margaret 

Marshall's  case. 


•  01 


t  Jieimns   v. 

Guyldley. 

§  jju7idas3  v. 

Weymouth. 


%  Holland  s  case. 


late  to  some  matter  apparent  upon  the  face  of  the  record,) 
the  record  may  be  removed,  by  writ  of  error,  into  a  supe- 
rior tribunal,  in  order  to  the  reversal  or  affirmance   of  the 
former  judgment."     A  further  reason  why  ihe   first  error 
assigned  cannot  be  maintained,  is,  that  it  discloses  matter 
which  ought  to  have  been  pleaded  ;  and  it  is  a  general  rule, 
that  what  may  be  taken  advantage  of  by  plea,  cannot  be  as- 
signed for  error.     Com.  Dig.  tit.  Pleader,  (3  B.  16.)  Cro. 
Eiiz.  4.f     In  the  present  case,  the  declara  ion  did  not  state 
the  act  as  ordering  payment  ot  the  $10.     The  now  piaintiff, 
to  avail  himsell  of  it, ought  to  have  disclosed  it  by  way  of  plea, 
and  then  we   might  have  traversed,  cr   demurred,  or  taken 
issue  on   the  payment,     it  was  enough  for  us  to  set  forth 
only  so  much  oi  the  act  as  made  for  ourselves.     A  declara- 
tion need  recite  no  more  of  a  statute  than  is  pertinent  to  the 
action.     Com.  Dig.  tit.  Pleader,  (2  S.  3.)  Ibid.  Action  upon 
Statute,  I.     The  residue  should  have  come  from  the  now 
plaintiff.     In  Poller  v.  Reed,  Cro.  Jac.  139.  a  second  error 
assigned,  was,  "  because  the  plaintiff  founded  his  action  upon 
the  statute,  and  recites  only  such  part  thereof,  whereby  he 
would  charge  the  defendant  generally,  whether  he  hath  as- 
sets or  not ;  and  it  appears,  by  the  other  parts  of  the  act 
*pleaded  by  the  defendant,  that  he  is  not  chargeable,  unless 
he  hath  assets  of  the  money   received  upon  the  sale  of  the 
lands,  or  woods,  or  debts  of  Sir  T.  G.  so  the  statute   is  not 
fully  recited   by   the  plaintiff.     Sed  nan  allocatur,  for  the 
plaintiff  reciting  what  made  for  his  advantage,  the  defendant 
may  plead  the  residue  if  he  will."     The  same  doctrine  is 
found  in  Cro.  Jac.  506.$  and  in  Cowp.  665.§     That  this  is 
a  public  act,  we  deny  on  the  authority  of  the  act  cited  by 
the  Attorney-General,  1  Rev.  Laws,  620.     By  the  first  sec- 
tion, all  the  public  acts  are  directed  to  be   contained  in  the 
first  volume  of  the  laws.     This  act  is  not  there.     It  is  with- 
in the  description  of  a  private  act.     Com.  Dig.  tit.  Parlia- 
ment,  (R.  7.)  4  Rep.  76.«[[     A  turnpike  act  is  no  more  a 
public  statute,  than  one  incorporating  a  bank.     As  to  the 
clause,  by  which  it  is  enacted,  that  on  a  certain   event  the 

3 


STATE  OF  NEW-YORK.  91 

road  shall  go  to  the  people,  it  means   no  more  than  that  it      ALBANY, 
shall  become  a  common  road  again.     But  allowing  that  the    v^Ji^/ 
declaration  is  not  so  full  as  it  might  have  been,  it  may  be  Thomas  Jenkins 
questioned  whether  any  advantage  can  be  taken  of  it  now.  tn^.u Turnpike 

After  verdict,  many  imperfections  are  cured,  which  would,    , 

if  urged  before,  have  been  fatal.  3  Black.  Comm.  394.  1  Sell. 
Prac.   523.       2   Wils.  261-t       3    Burr.   1725.     Weston  v.  g^j£j; 
Mason.     For  then,  every  thing  will  be  supposed  proved, 
which  must  at  the  trial  have  been  established,  to  entitle  to  a 
recovery.    1   Wils.   255.$     On  the  point  of  consideration  **««  v-  Stev' 
there  can  be  no  doubt ;  mutual  promises  are  sufficient  in  law 
to  create  good  considerations.     These,  by  the   subscribing 
the  note,  were  raised.     On  the  one  hand  the  plaintiff  pro- 
mised to  pay,  and  on  the  other,  the  company  promised  to 
receive  him  as  a  stockholder.     Suppose  a  man  sells  a  horse 
for  £100,  and  glO  to   be  paid  down  ;  in  a  suit  by  the  ven- 
dor, can  the  vendee  say  the  contract  is  annihilated,  because 
he  did  not  pay  the  glO  ?    The  words  legal  representatives 
evince,  that  the  payment  was  not  to  be  simultaneous  with 
the  subscription.     The  legislature  intended  the  bargain  and 
contract  to   be  complete,  on  the  mutual  promises  resulting 
from  the  subscribing.     The  clause  empowering  to  cause  to 
be  torfeited  the  shares  of  any  defaulter,  was  introduced  to 
give  a  new  and  superadded  right  to  the  corporation,  which 
was  not  incident  to  their  nature.     It  was  a  cumulative  reme- 
dy.    But  this  does  not  abrogate  their  inherent  right  to  sue 
•n  all  contracts  made  with  them.     A  lessor  may  have  a  Re- 
medy on  his  covenant,  without  losing  his  right  of  distrain- 
ing, or  re-entry.     So  that  possessing  one  remedy,  is  no  ar- 
gument for  losing  all  others.     The  order  made  by  the  com- 
pany, is  stated  according  to  the  only  manner  in  which  it  was 
possible  to  have  been  made  ;  that  is,  by  the  president  and 
directors.     They  were  the  constituted  agents  of  the  compa- 
ny, and  to  state  their  acts  in  the  line  of  that  agency,  is  to 
state  the  acts  of  the  company. 


92  CASES  IN  ERROR  IN  THE 

ALBANY,  Ilarison,  in  reply.     The  act  furnishes  no  one  word  to  au- 

thorize the  idea  that  the   subscriptions   are  recoverable  by 


ThomasJenkhis  sult*     *n  actions  founded  on  statutes,  the  rule  is,  that  where 
„  .J-      .,     no  remedy  is  given,  the  common  law  will  interpose  and  af- 

Uiuon  Turnpike  J        °  '  r 

Company.  ford  one  ;  but  where  the  statute  prescribes  a  remedy,  n© 
other  can  be  resorted  to.  Saying  the  remedy  is  cumulative, 
is  a  violation  of  all  principles.  On  the  point  of  considera- 
tion it  is  manifest,  that  had  Jenkins  brought  an  action  against 
the  president,  directors,  and  company,  for  his  proportion  of 
the  toll,  they  might  have  replied  the  non-payment  of  the  SlO, 
and  it  would  have  been  conclusive.  If  so,  they  were  not 
bound  to  him,  and  consequently  he  was  not  bound  to  them. 
This,  then,  is  a  clear  nudum  pactum,  ex  quo  non  oritur  actio. 
Cooke  v.  Oxley,  already  cited.  Two  acts  were  necessary  j 
subscribing  and  paying.  To  take  this  case  out  of  the  gene- 
ral rule,  it  ought  to  be  shown,  that  the  shares  vested  by  the 
subscription.  Latham  v.  Barber,  6  D.  &  E.  67.  Allowing 
however  the  contract  to  have  been  good,  the  judgment  must 
be  reversed ;  for  the  order  set  forth  by  the  pleadings  is  not 
in  conformity  to  the  contract  relied  on.  It  is  to  pay  ac- 
cording to  the  order  of  the  president,  directors,  and  com- 
pany ;  the  order  is  by  the  president  and  directors.  If  1  en- 
gage to  pay  according  to  the  order  of  A.  and  B.  you  must 
show  that  A.  and  B.  made  an  order.  If  not,  a  defective  title 
is  shown,  not  an  actual  title  defectively  set  forth.  This  is 
a  fatal  circumstance,  and  not  cured  by  verdict.  Rushton  v. 
f  Wiser.  Wise.  Aspinall.  Doug.  679.  2  Lev.  152.J  and  the  cases  cited  by 
the  Attorney-General.  The  company  have  not  pursued 
their  power  of  making  the  order  according  to  the  words  of 
the  act.  It  is  a  delegated  authority,  and  must  be  strictly 
pursued.  Fronting  v.  Small,  2  Ld.  Raym.  1408.  2  Bac.  Abr. 
7, 8.     This  also  is  conclusive  against  the  judgments. 

Lansing,  Chancellor.     The  first  point  to  be  determined, 

is,  the  class  to  which  the  act  of  the  legislature,  on  which  this 

*  93  action  *has  been  brought,  is  to  be   assigned ;  if  a  public 

act,  every  part  of  it  is,  in  legal  intendment,  in  the  know- 


STATE  OF  NEW-YORK.  33 

ledsre  of  the  court,  as  the  general  law  of  the  land.  If  a  pri-  ALBANY, 
vate  act,  it  can  only  be  so  tar  attended  to,  as  the  parties,  ^^^^j 
by  their  pleadings,  have  made  it  an  object  of  judicial  Thomas  Jenkins 
conusance.  Amongst  the  English  legal  maxims,  we  find,  Union  Turnpike 
that  every  statute  that  concerns  the  king,  and  every  statute  m__^Sl^^- 
that  relates  to  all  the  subjects  of  the  realm,  are  public  sta-  10  Co.  .v. j  toj». 
tutes.     All  highways,  as  contradistinguished  from  private  case.  8  Hep.  m 

■  «     .  ,         7      1  4  l38-  Hob-  W7. 

ways,  are  common  to  all  the  people  ol   the  state,  and  con- 
cern them  generally.     A  new  creation  of  a  highway,  or  a 
new  modification  of  an  ancient  way,  as  in  the   case  of  a 
turnpike,  does  not  affect  the  mode  of  using  it  generally.    It 
is  still  a  highway,  in  the  preservation  of  which,  all  citizens 
are   interested.     It  contributes  essentially  to  their  conve- 
nience.    The  toll  is   merely  exactable  for  its  construction, 
maintenance,  and   repair.     In  all  other  respects,  the  right 
of  using  it  as  a  highway  is  unimpaired.     The   people  of 
the  state,  who,  in  their  collective  capacity,  have  succeeded 
to  the  rights  of  sovereignty,  are  also  entitled  to  the  re- 
version, after  the  sums  charged  on  the  turnpike  are  satis- 
fied.    These  considerations  rather  incline  me  to  think  that 
this  statute  ought  to  be  considered  as  a  public  act;  but,  for 
the  purpose  of  this   argument,  I  do  not  suppose  it  neces- 
sary to  be  very  nice,  in  discriminating  between  public  and 
private  acts.     For,  though  it  is  true,  that  private  acts  must 
be  specially  pleaded,  the  plaintiffs  in   the  court  below,  by 
their  allegations,  have  so  far  placed  the  act,  on  which  this 
action  is  founded,  before  the  court,  as  to  enable  them  to 
examine  the  statute,  to  discover  whether  the  ground  on 
which  they  relied  can  sustain  their  action.     They  have  re. 
ferred  to  the  statute  by  its  title,  which  is  the  name  or  de-  6M>d6t.JW$ 
scription  given  to  it  by  its  makers,  and  though  the  plaintiff 
need  not  recite  more  of  the  statute  than  is  necessary  to  sup- 
port his  action  ;  and  though  it  is  laid  down,  that  a  misre-   Frteman,     4*8. 
cital,  which  does  not  go   to  the  ground  of  the  action,  is   "D££  "^ 
helped  after  verdict  by  the  statute  of  jeofails ;  yet  it  is  re-   %.  S31, 
quisite,  that  he  should  show  that  the  ground  of  his  action 
is  consonant  to  the  provisions  of  the  statute,  to  which  he 


&  CASES  IN  ERROR  IN  THE 


ALBANY,      has  thus  generally  referred  in  pleading,  and  so  far  forth  aa 
1804  it  is  material  to  show  the   ground   of  his  action,  he  has 

ThSS&s  given  it  the  property  of  a  public  statute.     This  is  clearly 
Union  Turn  ike  distinguishable  from  showing  an  exception  by  pleading.    In 
Company.       that  case  the  plaintiff  only  shows  *his  right  of  recovery  ge- 
"jjT^  "  nerallv,  and  the  defendant  must,  by  pleading,  bring  him- 

self within  the  exception.  In  that  case,  the  record  will  al- 
ways consist  with  the  statute.  In  the  other,  an  action  may 
be  sustained,  which,  from  a  mere  comparison  of  the  re- 
cord with  the  statute,  will  show  a  recovery  without  right. 
I  mean  now  to  consider,  1st.  Whether  the  contract  in  ques- 
tion is  a  valid  one  ?  2dly.  Whether  an  action  is  sustaina- 
ble by  the  defendants  for  the  sums  required  from  the  stock- 
holders ?  From  the  record  it  appears  that  commissioners 
were  appointed  by  the  statute  to  perform  certain  duties, 
particularly  prescribed.  They  were  to  receive  subscrip- 
tions, and  to  receive,  for  the  benefit  of  the  defendants,  $10 
on  each  share  of  the  stock  of  their  company.  1  he  plain- 
tiff subscribed,  but  it  does  not  appear  that  he  paid.  At  the 
time  these  steps  were  taken,  the  corporation,  described  in 
the  act,  was  not  in  existence.  It  was  incapable  of  con- 
tracting. The  acts  to  be  performed  by  the  commissioners 
were  merely  preparatory  to  its  creation.  To  give  effect  to 
their  acts,  their  power  must  be  strictly  pursued.  They  had 
no  discretion,  or  latitude  of  action ;  their  line  of  conduct 
was  marked  with  the  utmost  precision.  They  were  direct- 
ed to  exact  from  the  persons,  who  were  to  be  admitted 
members  of  the  corporation,  both  subscription  and  payment, 
as  a  condition  precedent  to  their  admission.  If  they  omit- 
ted either  to  subscribe,  or  to  pay,  they  did  not  come  within 
the  terms  of  admission.  If  so,  the  bare  act  of  subscrip- 
tion was  wholly  nugatory.  The  subscribers,  who  were  to 
meet,  could  only  constitute  themselves  such,  within  the  in- 
tent of  the  statute,  by  a  compliance  with  the  terms  pre- 
scribed by  it.  When  the  corporation  was  organized,  the 
directors  might  dispense  with  the  exaction  of  the  first  pay- 
ment.   But  if  they  did  so,  there  was  no  ground  for  ex? 


STATE  OF  NEW-YORK;  94. 

ending  the  doctrine  of  relation  to  the  transaction,  so  as  to     ALBANY, 
bring  it  within  the  rules  applying  to  mutual  contracts.     For?    k^^^j 
if  the  doctrine  of  relation  is  to  be  applied,  it  will  carry  it  to  Thcmas  Jenkins 
a  period  beyond  the  existence   of  the  body  politic    with  Union  Turnpike 
whom  the  contract  is  supposed  to  have  been  made.     II  the       ^ompan>. 
defendants  had  affirmed  the  contract,  in  ail  'he  time  inter- 
mediate  the  affirmance  and  the  subscription,  the   contract 
had  been  suspended.     Now,  it  is  a  well  established  rule, 
that,  to  give  effect  to  mutual  contracts,  a  unity  of  time,  as 
to  their  commencement,  so  as  to  bind  both  parties  from  the 
same  point  *of  time,  is  essential.     It  did  not  constitute  a  *  95 

contract ;  for,  the  contract,  if  any,  was,  "  I  agree  to  pay 
S25  for  every  share  I  acquire  by  this  subscription,"  and  if 
none  were  acquired,  none  were  to  be  paid  for.  This  result 
would  render  it  unnecessary  to  examine  the  second  point ; 
but  I  shall  cursorily  remark,  that  if  the  subscription  was 
efficient  in  the  first  instance,  I  have  no  doubt  but  that  the 
defendants  might  resort  to  their  action,  as  a  cumulative 
remedy,  and  that  they  had  their  election  either  to  sue,  or 
exact  the  forfeiture  prescribed  by  the  statute.  This  is  an 
affirmative  statute  ;  it  prescribes  a  form  of  contract,  which, 
if  so  entered  into  as  to  bind  the  parties,  at  the  time  of  con- 
summation, without  any  aid  from  the  statute  by  other  ex- 
press provision,  would  entitle  the  defendants  to  maintain 
their  action.  It  is  a  maxim  in  the  common  law,  that  a  sta-  2  hurt.  200. 
tute  made  in  the  affirmative,  without  any  negative  express- 
ed or  implied,  doth  not  take  away  the  common  law. 
Therefore  the  plaintiff  may  either  have  his  remedy  by  the 
common  law,  or  upon  the  statute.  For  the  reasons  given, 
I  am  of  opinion,  that  the  judgment  in  this  case  ought  to  be 
reversed  on  the  first  point. 

L'Hommedieu,  Senator.  The  act  establishing  this  cor* 
poration  directs,  that  every  subscriber  shall,  at  the  time  of 
subscribing,  pay  unto  either  of  the  commissioners  the  sum 
of  ten  dollars,  for  each  share  so  subscribed.  The  material 
question  in  this  case  is,  whether  a  subscriber,  refusing  to 


95  CASES  IN  ERROR  IN  THE 


ALBANY,      pay  the  money  subscribed,  is  liable  to  an  action  for  the  mo- 
*_  '        ,     ney  subscribed ;  or  whether  forfeiture  be  not  all  the  punish- 
Thomas  Jenkins  ment.      This   act,  being  made  for  a   particular  purpose, 
Union  iumpike  ought  to  be  strictly  pursued ;  and  as  there  is  no  remedy 
Comymy.      given,  except  the  forfeiture,  that  forfeiture  is  the  only  thing 
the  corporation  can   insist  upon.      In  this   case,  the  sub- 
scriber refused  to  pay  the   money  the  law  declared  should 
be  paid  at  the  time  of  subscribing.     If  this  was  not  done, 
it  was  a  nudum  pactum,  or  void  compact.     The  plaintiff,  by 
this,  forft  ited  his  right  to  be  a  stockholder ;  and,  in  case 
the  stock  had  rose,  the  company  would  have  been  under  no 
obligation  to  have  considered  him  as  a  stockholder.     This 
is,  I  believe,  the  first  instance  of  a  suit's  being  brought  on 
a  subscription  to  a  turnpike  or  canal  corporation,  on  ac- 
count of  a  refusal  to  pay  the  subscription  money.     This 
shows  the  general  sense  of  the  community,  in  respect  to 
such  subscriptions.     Many  instances  of  this  kind  in   the 
*  96  canal  company,  insurance  ^companies,  banking  companies, 

and  others,  have  taken  place  ;  and  if  the  doctrine  of  sub- 
scribers' being  liable  to  pay  up  the  shares  in  such  navigation 
companies  to  which  they  have  been  subscribed,  be  once 
entertained,  it  would  be  ruinous  to  many  ;  contrary  to  the 
intent  and  meaning  of  the  parties,  and  the  obvious  con- 
struction of  the  law.  The  determination  of  this  court  will 
settle  the  rule  in  regard  to  corporations  which  are  formed, 
or  similar  ones  which  may  be  created,  as  to  bringing  suits 
on  subscriptions.  If  the  defendants  are  suffered  to  re- 
cover, it  will  open  a  wide  door  for  numberless  suits,  if  the 
corporations  are  disposed  to  bring  them.  By  the  contrary 
rule  no  inconvenience  will  accrue.  In  this  case  before  us, 
we  have  no  facts  to  show  why  the  subscriber  refused  to  pay 
the  money  subscribed  by  him.  But  whatever  reason  he 
had  for  his  conduct,  I  am  of  opinion  he  had  a  right  so  to 
do,  by  the  fair  construction  of  the  act;  and  that  the  judg- 
ment of  the  supreme  court  be  reversed. 

Judgment  reversed,  the  court  holding  no  action  would  lie. 


STATE  OF  NEW- YORK.    .  96 

Robert  Furman,  Appellant,  and  Jesse  Coe,  Samuel 
Coe,  and  William  Coe,  Respondents. 

ON  appeal  from  chancery.     Robert  Coe,  the  grandfather  ^JSJJJJJ 

of  the    respondents,  by  his  will  empowered  his  executors,  g^djjg  ta 

William  Furman  and  William  Howard,  to  st  11  and  dispose  plication*  «?J»| 

of  all  His  real  and  personal  estate,  at  such  time  as  should  be  review,  and  not 

.  ,  u     "  r  i   for  a  rehearing. 

judged  most  advantageous  for  his  chilaren.     lie   directed  xv!a.n  (i,e  com- 

also,  that  his  daughter  Mary  Coe's  children  (the  respondents)  jj£J^££ 

should  have  the  same  quantity  of  money  betzveen  them  as  their  jyjyj"  * 

mother,  the  said  Mary  Coe,  should  have  had  for  her  portion,  JJjfh^*^ 

had  she  survived ;  that  is,  to  be  equal  xvilh   the  rest  of  his  wheB  their  ece- 

„     .  tik,    l>v   articles. 

daughters,  such  share  to  be  left  in  the  hands  oj  his  executors,  l( an exeeator or 
to  bring  them  up.  On  the  death  of  the  testator,  Hoxvard  j^tftrust^ol 
refusing  to  act,  William  Furman  alone  proved  the  will;  ■£;** J^gJ 
and  in  pursuance  of  the  authority  it  contained,  being  fcr^jj  *£»£ 
about  to  sell  the  estate  of  the  testator,  some  of  the  lega-  £j*£££m 
tees   who  were   of  age,  objected  to  it,  urging,  that,  from  *i reprewnuthe 

'  ,      .  ,      i       i  1,4    nay    avail  lnm- 

the  then  existence  of  the  revolutionary  war,  the  land  would  stlf  otit,  though 
sell  to  a  great  disadvantage  ;  and  that,  as  several  robberies  ^^SoSrfSJ 
hud  been  committed  in  the   neighbourhood,    the  keeping  ogh^  of    W^ 
*the  money  it  might  bring  would  be  attended  with  danger  ;  scuts.       J 
but  that  if  a  sale  was  to  take  place,  it  ought  to  be  at  auction, 
as  in  that  manner  a  higher  price  would  be  obtained.     The 
executor,  however,  without  attending  to  these  remonstran- 
ces, proceeded  in  the  disposition  of  the  real  and  personal  es- 
tate of  the  testator,  which  he  sold  in  the  month  of  May, 
1779,  at  private  sale,  for  3,158/.  of  which  sum  the  real  es- 
tate produced  3,000/.     On  the  3d  of  August  following,  the 
executor  divided  the  money  aiising  from  the  sale  among  the 
legatees,  according  to  their  interests  under  the  will,  and  took 
from  those  who  were  of  age  a  receipt  in  full,  for  all  their 
shares  and  proportions  respectively  ;  but  the  part  belonging 
to  the  respondents,  the  eldest  of  whom  was  not  then  six  years 
old,  he,  according  to  the  directions  of  the  will,  retained  in 
his  own  hands.     In  1783,  William  Furman,  the  executor, 


97  CASES  IN  ERROR  IN  THE 

ALBANY,  died,  and  the  appellant,  his  son,  having  administered  on  his 
estate,  the  respondents  filed  their  bill  against  him,  tor  the 
recovery  of  their  legacies,  under  the  will  of  Robert  Coe. 
To  this  the  appellant  put  in  his  answer,  insisting  on  a  total 
exoneration,  in  consequence  of  his  father's  house  having 
been  broken  open  by  some  robbers,  who  took  away  all  the 
money  then  in  his  father's  possession,  including  that  belong- 
ing to  the  respondents,  no  part  of  which  had  ever  been  re- 
covered. On  the  examination  of  witnesses,  the  fair  cha- 
racter of  the  executor  and  the  robbery  were  fully  established. 
The  testimony  of  one  witness  went  to  show  a  recovery  of 
the  money,  from  an  acknowledgment  of  the  executor  in 
conversation  with  him.  It  was  also  in  evidence,  that  Wil- 
liam Fur  man  had  refused  to  advance  to  Susannah  Coe,  with 
whom  the  respondents  lived,  any  thing  for  their  support, 
saying  no  person  should  have  money  from  their  legacies, 
until  they  should  come  of  age.  It  appeared  also,  that  Wil- 
liam Furman  had  let  out  the  real  estate  of  his  testator  for 
two  years.  Upon  these  circumstances,  the  Chancellor  had 
decreed  to  the  respondents  their  full  proportion  of  the  real 
and  personal  estate  of  Robert  Coe,  without  any  deduction; 
and  also  their  proportion  of  two  years'  rent  of  the  real  estate, 
with  full  interest  on  the  whole,  to  be  computed  at  the  expi- 
ration of  three  months  after  the  sale  of  the  testator's  pro- 
perty. After  pronouncing  this  decree  the  appellant  present- 
ed a  petition  for  a  rehearing,  setting  forth,  that  he  had  since 
discovered  that  two  of  the  respondents'  witnesses  (whose 
depositions  *were  read  at  the  hearing  of  the  cause)  were,  at 
the  time  of  their  examination,  interested  in  the  event  ;  and 
that  one  of  the  respondents  died  before  the  hearing,  having 
bequeathed  his  interest  under  the  will  of  Robert  Coe,  to  the 
witnesses  in  question.  The  petition  having  been  dismissed 
with  costs,  the  appellant  presented  another  for  a  rehearing, 
in  which  he  stated  that  Susannah  Coe  had,  with  two  of  the 
respondents,  resided  on  the  real  estate  of  the  testator,  from 
May,  1778,  till  it  was  sold  ;  and  that  during  the  war  it  was 
very  difficult  to  put  money  out  at  interest ;  that  when  it 
3 


*  9& 


STATE  OF  NEW-YORK.  98 

could  be  done,  it  was  at  a  very  low  rate  ;  and  that,  at  no      ALBANY, 
time  from  thence  to  the  present  day,  had  money  been  loan-    v  ^_      _  j 
ed  at  7  per  cent.     This  petition  being  also  dismissed  with     r.  Furman 
costs,  the  appellant  appealed,  as  well  from  the  orders  there-  j.  coe  &  others. 
on,  as  the  decree  in  the  cause.     Bogert,  for  the  appellant, 
having  opened  the  case,  his  Honor  the  Chancellor  proceed- 
ed to  assign  his  reasons  : 

Mr.  President— Four  questions  have  been  discussed   in 
this  case,  as  material  to  a  decision  between  the  parties.  1st. 
Whether  the  sale  of  the  real  estate  by  the  executor  was  bo- 
nd fide  ?     2d.  Whether  the  fund,  destined  to  the  support 
and  education  of  the  complainants,  was  inequitably  with- 
held ?  3d.  Whether  robbery  can  legally  operate  to  discharge 
an  executor?  and,  4th.  Whether  the  evidence  of  the  robbery 
in  the  present  case  is  competent  to  his  discharge  on   that 
ground  ?     The  will  vested  a  liberal  discretion  in  the  execu- 
tors as  to  the  time  of  sale.     They  were  authorized  to  sell  the 
testator's  real  and  personal  estate,  at  such  time  as  should  be 
most  advantageous  to  the  children  of  the  testator.     He  di- 
ed in  1777;  the  sale  of  the  real  estate  took  place  in  1779. 
It  is  perhaps  difficult,  at  this  late  day,  to  appreciate  with  ac- 
curacy the  motives  to  the  sale,  at  the  time  it  took  effect.    It 
was  at  a  period  of  great  public  commotion  ;  when  the  ope- 
rations of  contending  armies  had  affected  the  value  of  real 
estates  very  essentially  ;  when  that  species  of  property,  from 
the  circumstances  of  the  times,  and  the  repeated  depreda- 
tions of  lawless  men,  was,  however,  to  be  preferred,  as  a 
permanent  fund  for  the  support  of  persons  incapable  of  ma- 
naging their  own  concerns,  to  the  less  secure  investment  of 
money.     These  considerations  it  seems  were  fully  brought 
into  the  view  of  the  executor,  by  the  representations  of  some 
of  the  persons  beneficially  interested  under  the  provisions  of 
the  will ;  they  were  disregarded,  *and  the  sale  persisted  in.  *  99 

Yet  from  a  review  of  all  the  depositions,  I  think  the  ra- 
tional result  drawn  from  the  whole  collectively,  is,  that  the 
testator's  real  estate  was  not  sold  much  below  its  value. 


99  CASES  IN  ERROR  IN  THE 

ALBANY,      Several  of  the  witnesses  depose  positively  to  this.     Those 

1804.  v  v  J 

who  differ,  either  mention  in  indefinite  termsthat  it  was  sold 


Ji.  Furmsm      below  its  value,  or,  if  the v  define  the  sum,  they  connect  the 

V. 

r.  Coe  &  others,  advanced  price  with  a  sale  at  auction,  to  which  the  executor 
was  not  bound  to  have  recourse.     This,  combined  with  the 
circumstances  that   all  the  other  devisees,  capable  of  acting 
lor  themselves,  immediately  acquiesced,  received  their  divi- 
dends of  the  consideration-money,  and   executed  acquittan- 
ces, I  think,  may  well  be  admitted  to  close  the  examination 
as  to  this  point ;  for,  though  their  acts  generally  cannot  ope- 
rate to  the  prejudice  of  the  complainants,  on  this  point,  they 
speak  an  unequivocal  language  as  to  the  fairness  of  the  sale, 
as  they  are  not  even  suspected  of  collusion  with  the  execu- 
tor.    As  to  the  second  point,  this  is  important  in  one  view 
of  the  subject.     For,  if  the  executor,  regardless  of  the  obli- 
gation he  had  incurred  by  taking  upon  himself  the  execu- 
tion of  the  will,  refused  to  provide  for  the  support  and  edu- 
cation of  the  complainants,  he  may  be  chargeable  for  such 
breach  of  trust.     The  complainants  have  specifically  char- 
ged this  refusal  in  their  bill,  and  the  defendant,  in  his  an- 
swer, avows  his  ignorance  of  any  advance,  for  that  purpose, 
by  his  intestate.     The  will  directed  that  the  shares  of  the 
complainants  (Mary's  children)  should  be  left  in  the  hands 
of  the  executor  to  bring  them  tip.     The  children,  all  the  wit- 
nesses examined  to  that  point  concur,  were  of  a  very  tender 
age,  at  the  time  of  the  death  of  the  testator.     Susannah  Coe 
swears  that  she  brought  them  up ;  that  she  lived  within  two 
miles  of  the  executor ;  that  she  several  times  called  upon 
him  for    some    portion  of  their   share  of  their     grand- 
father's estate,  for  their  support  and  education  ;  that  he  po- 
sitively refused,  without  assigning  any  reason,  to  advance  any 
till  they  arrived  of  age  ;  that  the  complainants  were  in  want 
of  clothing,  and  other  necessaries  ;  that  this  was  after  the  sale 
of  the  real  estate,  and  after  some  of  the  devisees  had  been  paid. 
Robert  Moore,  John  Moore,   Hezekiah  Field,    and    Sarah 
Leverick,  confirm  the  account  of  the  infancy,  destitute  situa- 
tion of  the  complainants,  and  their  being  supported  by  their 


STATE  OF  NEW-YORK.  99 

prandmother,  aunt,  or  some  other  of  their  relations.     The       ALBANY, 
executor  has  been  proved  *to  have  sustained  a  fair  charac-    v^^-v-^f 
ter,  by  all  the  witnesses  examined  to  that  point ;  but  the      K.  Furman 
circumstances  of  his  retaining  the  fund  destined  to  support  J.  Coe  &  other* 
and  educate  the  orphans,  whose  interests  had  been  commit-  ^  1QQ 

to  his  charge  ;  of  his  observing   them  thrown   upon  the 
bounty  of  their  relations,  destitute  of  clothing,  and  in  want 
of  necessaries  of  life,  and  this,  in  direct  violation  of  the  trust 
he  had  undertaken,  are  calculated  to  throw  an  air  of  suspi- 
cion on  the  whole  subsequent  transaction  ;  and,  as  far   as 
part  of  the   fund   was   necessary  to  be   applied   to    their 
subsistence  and  education,  it  would  clearly  make  him  lia- 
ble, whatever  might  be  the  consequences,  of  the  robbery  as 
to  the  residue.     As  to  the  third  point  j  in  2  Fonb.  191.  it  is 
laid  down  as  a  result  deduced  from  the  cases  bearing  on  this 
question,  that  if  a  trustee  be  robbed,  the  sum  lost  by  the 
robbery   shall   be    allowed   him  in  account,    although  the 
amount  be  proved  only  by  his  own  oath.    To  fortify  this  rule 
he  cites  the  case  of  Morly  and   Morly,  2   Ch.  Cases,  2.   in 
which  the  robbery  was  proved,  and  the  sum,  by  the  defend- 
ant's own  oath.    In  Co.  Litt.  89.  it  is  said,  that  if  a  guardian 
receive  rent,  and  be  robbed,  if  without  his  negligence  and 
default,  he  shall  be  discharged.     In  Southcote's  case  in  ac-  4  Bet,.  84,  * 
count,  it  was  held  to  be  a  good  plea  before  the  auditors,  that 
the  defendant  was  robbed.     In  Jones  v.  Lewis,  2  Fez.  241. 
there   is  the  same   doctrine,    as  to  robbery   being  a   dis- 
charge of  the  executors,  if  properly  proved.     These  cases 
establish  the  doctrine,  that  if  an  executor  be  robbed  with- 
out his  default,  the  robbery  being  proved,  he  shall,  by  his 
own  oath,  be  permitted  to  ascertain  the  sum  lost,  and  shall 
be  discharged  as  to  such  sum.     It  is  therefore  only  necessa- 
ry to  test  the  evidence  in  the  present  case  by  that  rule.  The 
authorities  cited  permit  the   defendant  to  adduce  the  evi- 
dence of  die  robbery,  and  by   his  own  oath,  to  ascertain 
the  extent  of  the  loss  ;  but  it  is  certainly   not   a  necessary 
consequence  of  this    rule,  that   because  a  departing   step 
has  been  taken  from  the  strict  line  of  evidence  by  admit- 

u 


100  CASES  IN  ERROR  IN  THE 

ALBANY,      ting  the   defendant's   oath,    in    his    exoneration ;     there- 

x^J^t*^/    fore   it  is  necessary  to  continue   a  progress   in  the  same 

H.  FurmavL      direction,    by    taking   his    declaration,    unsanctioned    by 

J.  Coe  £  others,  oath,  as  part  of  the  evidence.     The  defendant  in  this  case 

' has  stated  the  robbery  positively.     But  he   has  connected 

with  it  the  information,  that   he   was   absent  from    Long- 
Mand  during  the  whole  of  the  war   beween  the    United 
States  and  Great  Britain,  and  thus  conclusively  evinced,  that 
*  101  #the  fact  of  the  robbery  was  not  asserted  on  his  own  know- 

ledge of  that   circumstance,  but  collected  from  the  infor- 
mation of  others.     That  a  robbery  was  committed,  and 
some  money  stolen  from  the  executors,  seems  to  be  pretty 
well  established.     The  declarations  of  the  executor,  though 
contemporaneous,  I  think  cannot  be  admitted  as  evidence  ; 
but  if  they  could,  those  declarations  are  so  inconsistent  with 
each  other,  as,  even  admitting  their   validity  generally  to 
establish  the  point,  to  fail  of  that  effect  here.     All  the  wit- 
nesses, however,  speak  of  Tits  declarations  only,  without  any 
pretension  to  personal  acquaintance  with  the  circumstances 
of  the  robbery,  excepting  Abigail  Rhodes,  Mary  Boss,  and 
Robert  Drummond',  who  were  in  the  house  of  the  executor 
on  the  night  the  robbery  was  committed ;  they  also  agree 
that  the  house  was  broken  open  by  a  party  of  men  armed 
and  disguised.     Abigail  Rhodes  deposed,  that  800/.  or  900/. 
in  cash  was  carried  off,  besides  some  articles  of  silver ; 
that  part  of  the  money  so  carried  off,  "  was  money  received 
of  the  estate  of  Robert  Coe,  deceased,  and  then  in  the  hands 
of  William  Furman,  senior,  as  executor  of  that  estate." 
Upon  her  cross-examination  she  declares,  "  that  some  part 
of  the  money  of  which  the  said  William  Furman  was  rob- 
bed, belonged  to  himself,  some  to  the  brother  of  the  said 
William,  and  that  a  considerable  part  belonged  to  the  estate 
of  Robert  Coe,  deceased  ;  that  all  the  money  of  which  the 
said  William  was  robbed,  was  kept  in  a  strong  chest,  in  an 
upper  chamber,  at.  the  time  of  the  said  robbery ;  that  the 
money  was  in  gold  and  silver,  and  was  contained  in  bags." 
She  then  proceeds  to  relate,  that  the  executor  was  sent  for 


STATE  OF  NEW-YORK.  101 

to  Nexu-York,  to  attend  the  trial  of  some  soldiers  for  the       AI^*NY' 
robbery  ;  that  a  purse  containing  sixty  guineas  was  shown    ^^^^/ 
to  him,  and  he  was  required  to  identify  it,  which  he  could      R    1;,rmatl 
not.     Mary  Boss  deposes,  that  the  party  robbed  the   exe-  J.  Co?  fc  other., 
cutor  of  all  the  money  in  the  house ;  that  she   was  present 
and  saw  the  robbers  carry  off  the  bags  containing  the  mo- 
ney.    Upon  her  cross-examination  she  says,  that  the  mo- 
ney of  which  the  executor  was  robbed,  was  kept  in  a  chest 
in  an  upper  room;  that  it  consisted  of  hard  money,  and  was 
contained  in  bags  ;  that  she  saw  the  robbers  bring  the  said 
bags  down  stairs,  and  carry  them  away ;  that  she  knew  not 
the  quantity  of  money,  having  never  seen  it  counted  ;  that 
she  was  at  that  time  employed  by   Mrs.  Furman  to  spin. 
Robert  Drummond  *says,  that  the  latter  end  of  September,  *  102 

or  beginning  of  October,  1779,  when  the  robbery  was  com- 
mitted, he  lodged  at  the  executor's  j  that  he  saw  one  of  the 
robbers  force  open  a  chest,  and  take  from  it  a  bag ;  that 
another  broke  open  a  closet,  and  came  out  with  three  bags, 
which  he  supposed  contained  money,  as  it  rattled  ;  that  the 
executor,  after  the  robbers  were  gone,  observed,  that  300/. 
of  the  money  belonged  to  some  orphan  children,  of  the 
name  of  Coe ;  that  he  had  offered  the  money  to  the  relations 
of  those  children,  telling  them  it  was  troublesome  times,  and 
that  he  did  not  wish  to  run  any  risk  in  keeping  the  money. 
Abigail  Rhodes  particularizes  the  several  owners  of  the  mo- 
ney, and  mentions  the  executor,  his  brother,  and  the  estate 
of  Robert  Coe,  as  composing  those  owners ;  all  this  money 
she  says  was  put  in  bags,  in  a  strong  chest,  in  an  upper 
chamber.  Mary  Boss  says  they  took  all  the  money  in  the 
house,  which  she  also  says  was  in  a  chest  in  an  upper  room, 
and  that  it  consisted  of  hard  money,  and  zvas  contained  in 
bags.  If  ail  this  money  described  by  these  two  witnesses 
was  in  bags  and  contained  in  a  chest,  Robert  Drummond" s 
testimony  shows,  that  the  whole  of  the  money  from  this 
chest  was  not  taken  ;  for  he  expressly  declares,  that  only 
one  bag  was  taken  out  of  the  chest,  and  three  others  from 
the   closet ;  and  as  the    chest  contained  money   of  three 


102  CASES  IN  ERROR  IN  THE 

ALBANY,      several  persons,  and   probably   in    distinct  parcels;    from 

•  "^'^^i    these  depositions  contrasted,  it  would  appear,  that  though 
]{.  Fnrman      a  bag  of  money  was  taken  from  the  chest,  it  might  not  be 

.l.CoekoiKrs.  the  one  containing  the  money  of  the  complainants  ;  these 

—    considerations,  and  the  declaration  of  the  executor  deposed 

to  by  John  Moore,  that  he  had  got  it  back  again,  and  the 
one  made  by  him,  related  by  Sarah  Leverick,  that  some 
money  had  been  left  in  every  drawer,  superadded  to  which, 
the  inconsistent  declarations  of  the  intestate  at  different 
times,  show  that  it  is  totally  impracticable  to  identify  the 
money  of  the  complainants  in  the  hands  of  the  executor,  as 
the  money  stolen.  Here  the  extraordinary  interposition  of 
the  executor's  oath  might  attach  the  loss  to  the  fund  in 
controversy  ;  but  without  that,  it  is  clear  the  discharge  can- 
not be  made  out.  I  am  therefore  of  opinion,  that  the  de- 
fendant, who  has  admitted  assets,  is  liable  for  the  amount 
of  the  proportions  of  the  complainants,  and  that  it  ought  to 
be  paid  with  interest,  which  is  a  very  inadequate  compensa- 

*  103  tlon  f°r  tne  privations  which  the  complainants  have  *expe- 

rienced  by  the  non-application  of  the  fund  to  their  support 
and  education.  I  take  it,  therefore,  it  must  be  referred  to 
a  master  to  settle  the  account,  in  doing  which  he  ought  to 
charge  the  defendant  with  the  one-tenth  part  of  the  produc- 
tion of  the  real  and  personal  estate  of  the  testator ;  with 
these  complainants  one-seventh  of  the  shares  of  Elnathan 
and  James,  with  the  one-fifth  of  Alettd's  share,  with  in- 
terest on  each  sum  from  three  months  after  the  sale,  de- 
ducting the  money  paid  for  her  maintenance,  with  the  share 
of  the  complainants  in  the  personal  estate  of  the  testator, 
calculating  the  personal  property  at  the  selling,  and  not  at 
the  appraised  value,  and  with  the  complainants'  proportion 
of  the  two  years  rent  of  the  testator's  real  estate  with  in- 
terest. 

Riggs,  for  the  respondents.  Before  the  counsel  opens 
on  behalf  of  the  appellant,  we  shall  state  that  it  was  agreed 
in  the  court  below,  that  the  suit  should  proceed,  notwith- 


STATE  OF  NEW-YORK.  *0S 

standing  the  death  of  one  of  the  respondents.     That  cir-      ALBANY, 
cumstance,  however,  was  available  of,  only  by  way  of  bill    ^^^/ 
of  revivor,!  and  cannot  be  urged  now,  because  in  appeal,      "•  *~ 
nothing  can  be  insisted  on  which  was  not  offered  below.  J.  Coefc  others 
1  Har.  Ch.  454.     We  shall  contend  also,  that  rehearings  }•  u  has  been  said 

,.  c     i  *     „-;i„,  tr.    that  no  defend- 

are  applications  to  the  discretion  ol  the  court,  similar  to  ant>vin,.any  who 
those  for  new  trials;  and  that,  as  in  the  one  case,  a  writ  Jf^1** 
of  error  will  not  lie  for  a  refusal,  so  an  appeal  cannot  be  ^£%*ft 
maintained  in  the  other,  for  dismissing.  3  P.  Wms.  8.J  gj^-jjg; 
Ann  further,  that  if  the  appellant  was  entided  to  any  re-  ««£*«*  Mi£ 
investigation  below,  it  ought  to  have  been  sought  by  bill  of  tMiUsv.'Sfink*. 
review,  and  not  by  a  petition  for  a  rehearing.  1  Har. 
Ch.  450. 

Bogert.     On  the  first  point  made   below,  we  have   no- 
thing to  complain.  The  Chancellor's  decision  has  put  that  at 
rest.     But  as  to  the   interest  with  which  we   have  been 
charged,  we  cannot  be  liable  for  it,  unless  it  appear  we 
have  made  the  fund  productive.     It  is  in  evidence  it  could 
not  be  put  out,  except  with  great  difficulty;  and  allowing  it 
could,  it  is  settled  an  executor  is  not  bound  to  do  it.  2  Fonb. 
184,  185.$     Besides,  the  executors  were  ordered  to  retain  J*J^  *•    itU" 
in  their  hands  ;  whilst  doing  this,  the  robbery  takes  place, 
and  this  is  from  principle,  as  well  as  necessity,  a  full  ex- 
oneration.    2  Fonb.  177,  178.     2  Fez.  240.H     If  the  facts  1f/o««  v.  />«■,«. 
that  a  robbery  was  committed,  and  the  money  never  re- 
covered, were  dubious,  an  issue  ought  to  have  been  di- 
rected.    To  object,  that  the  appellant's  father  did  not  prove  ^ 
the  sum  taken  from  him   on  oath,  is  *but  of  little  -Srce ; 
for  as  at  that  time,  and  till  his  death,  no  courts  were  sit- 
ting, it  was  impossible  to  swear  to  that  circumstance  in  any 
legal  and  efficacious  manner.     The  appellant  himself  could 
not  do  it,  but  in  the  manner  in  which  he  has  done,  accord- 
ing to  the  best  information  and  belief.     It  is  only  in  case  pf 
gross  neglect,  an  executor  standing  in  the  relation  of  trus- 
tee is  ever  made  liable  in  chancery.     1  Atk.  430.J     The  t  *«**«* 


104  CASES  IN  ERROR  IN  THE 

ALBANY,      proof  against  him  must  be  very  strong.    1  Fern.  1444  And 
that   for   fear   of   discouraging   people  from   undertaking 
It.  Formati      burthensome  trusts.     2  Ves.  jun.  37. § 

V. 

J.  Coe  &  others. 

Kip-ps  and  Hoffman,  contra.     In  support  of  the  decree 

*    Palmer   v.  6i>  M  '  ,, . 

/«««.  we  shall  contend,  that  previous  to  the  robbery,  the  executor 

jftdbnwi.  was  guilty  of  a  most  palpable  breach  of  his  trust,  and  so 

converted  the  fund ;  any  subsequent  loss,  therefore,  was  of 
his  own  property,  for  which  we  were  not  to  suffer.  Bar- 
f  Vemon  v.  nurd,  303.^  2  Fonb.  169.  n.  (b.)tt  4'  Ves.  jun.  620.  %  % 
ft  SL  C.  cited  The  very  sale  was  in  violation  of  his  duty.  It  was  at  a 
trustee  who  is  time  when  property  was  low  ;  and  when  even  the  product 
guilty  of  a  breach  cou\&  not     as   js  stated  by  the  answer  of  the   appellant 

of  trust,  is  liable  '  ■'  '  r 

to  his  cestui  que  himself,  be  put  out  to  interest ;  this  too  contrary  to  urgent 
U  Wety  v.  Stace.  remonstrances.     In  addition  to  these  observations,  the  re- 

A  trustee  using  .  .     ,  ..... 

trust  money  iu  fusal  to  apply  the  portions  oi  the  respondents  in  bringing 
shall  be  ehargea-  them  up  according  to  the  directions  of  the  will,  was  clearly 
ThTth demand'  a  Dreach  of  trust,  and  a  conversion  of  the  fund  pro  tanto. 
however,  of  the  This,  upon   the    principle   before   laid  down,  renders  the 

cestui  que  trust,  »      r  r  r 

is  <  aiy  a  simple  trustee  answerable  for  the  whole ;  and  for  this  we  have  an 

contract      debt,  m 

unless    acknow-  authority  in  the  case  of  Le  Git  en  v.  Gouverneur  er  Kembk§§ 

(edged    by     the   .  .  c    . 

trustee      under  in  this  very  court.     As  to   the  residue  or  the  decree,  we 

Giffordy  Man-  repose    ourselves   on   the   doctrines   and  reasons   it    con- 

Amer.  3fj'i. 

Troup  and  Benson,  in  reply.  If  the  court  does  not 
reverse  in  toto,  they  will  at  least  order  an  issue  to  be  di- 
rected. On  the  fact  of  robbery,  there  is  no  doubt.  The 
only  question  is,  as  to  the  recovery  of  the  money.  If 
the  proof  of  that  is  deficient,  a  jury  is  the  proper  tri- 
bunal, unless  the  court  think  it  established  that  it  was 
never  regained.  As  to  the  case  of  Le  Guen  v.  Gouver- 
neur &?  Kemble,  that  turned  on  this  point.  The  defend- 
ants   refused    to    give    the    plaintiff   an    authority    to    re- 

fflT  Both  the  counsel  went  into  very  elaborate  and  lengthy  examinations  of 
the  testimony  in  the  cause  ;  but  as  the  decision  in  the  court  below,  and  the 
opinions  in  this,  contain  the  essence  of  the  whole,  to  insert  the  ingenious 
arguments  delivered,  would  not  elucidate  the  point,  how  much  soever  they 
might  evince  the  talents  of  the  speakers. 


STATE  OF  NEW- YORK.  *  105 

ceive  *his  money,  to  which  he  was  entitled,  and  which  he      ALBANY, 
did  not  claim,  but  subject  to  their  lien,  after  deducting  fully    v^^^L/ 
its  amount.     The  cases  are  by  no  means  parallel.     By  the      ^  *'™»u 
decision  of  the  Chancellor,  interest  is   ordered,  though  the  J.  Coe  k  others. 
robbery  is  allowed.     This  is  acknowledging  the  misfortune, 
yet  inflicting  a  punishment ;  for  interest  is  given  against  a 
trustee  by  way  of  mulct  or  penalty.     In  this  respect,  there-    • 
fore,  the  decree  is  clearly  wrong.     So,  in  allowing  the  rents 
of  the  real  estate  for  two  years  to  be  taken  into  the  compu- 
tation.    Till  the   estate  was  sold,  the  rentsf  belonged  to  tTJ^jJ  £ 
the  heir  at  law  ;  for  to  him  the  estate  descended  till  the  real  estate  is  to 

he   soli!  at  all  e- 

time  of  sale.  vei,,.s.  »«d  i««»- 

e<l  into  person- 
alty, the     rents 

Spencer,  J.  It  is  proper  that  I  first  consider,  whether  g»j»  *■  »gj 
the  proceedings  on  the  petitions  presented  by  the  appellant  Crge^Rarleg, 
for  a  rehearing  of  the  cause,  afte*  a  decree  settling  all  the  and  tte  noted? 
principles,  and  the  dismissing  those  petitions,  is  warranted  if  the  prodnot  of 

"  1  _  the  land  he  to  be 

by  the  course  of  proceedings  in  the  court  oi  chancery,  it  «]ivujva  between 
appears  to  me,  that  the  Chancellor  disposed  of  those  peti-  J^J >£2 
tions  correctly  ;  for,  as  has  been  insisted  on  by  the  respond-  g  JX*^ 
ents'  counsel,  instead  of  asking  a  rehearing,  on  the  disco-  ^^"JJj 
verv  of  new  evidence,  the  application  ought  to  have  been  for  astoUieirsfcarei. 

v*-lJ   "  «  r    i_  •       ,n  tavour  ot  the 

a  bill  of  review,  upon  which  the  competency  of  the  two  wit-  \IC\V  at  law. 
nesses,  Hezekiah  Field  and  Susannah  Coe,  would  have  been 
directly  in  issue.     It  was,  however,  not  necessary  to  have 
filed  articles  ;  and  in  Callaghan  v.  Rochfort,  3  Atk.  643.  Ld. 
Hardwicke  decided,  that  articles  were  improper,  when  the 
objection  was  to  the  competency  of  the  witnesses  ;  but  when 
to  their  credit,  they  were  proper.     The   question  as  to  the 
interest   of  money  upon  Long-Island  during  the  war,  was 
certainly  a  question  to  which  the   appellants  examined  wit- 
nesses ;  and  it   cannot,  with  any  propriety,  be   pretended, 
that  he   discovered  testimony  as  to  the  rate  of  interest,  of 
which  he  had  no  knowledge  before  the  passing  of  publication, 
or  the  decree.     But,  upon  any  grounds  which  may  be  assu- 
med, as  the  application  to  the  Chancellor  was  for  a  rehearing, 
in  my  opinion,  the  appellant's  counsel  mistook  their  remedy, 


105  CASES  IN  ERROR  IN  THE 

ALBANY,      and  the  Chancellor  very  properly  dismissed  the  petitions* 

rJ8"t__,    In  making  up  my  opinion,  therefore,  I  have  rejected  ail  the 

R.  Furman      exceptions  to  the  testimony  of  the  two  witnesses,  Hezekiah 

J.Coe&oihers.  Field  zn&  Susannah  Coe.     The  first  question  presenting  it- 

self,  is,  whether  there  is  testimony  enough  to  warrant  the 

court  in  saying,  there  was  a  robbery?  And,  upon  this  head 
*  106  of  the  inquiry,  without  at  all  regarding  *what  William  Furman 

said,  there  cannot  remain  a  doubt.     It  is  proved  by  the  de- 
positions of  three  witnesses,  who  were  present  at  the  time 
the  robbery  was  perpetrated.     Abigail  Rhode  ,  Mary  Boss, 
and  Robert  Drummond,  depose   to  the  facts.     They  relate 
the  circumstances,  and  agree  in  the  principal  occurrences 
more  correctly  than  is  common  for  three  persons,  who  are 
deposing  to  an  incident  twenty-three  years  after  it  has  hap- 
pened.    There  can  exist  no  reasonable  ground  on  which  to 
doubt  the  robbery.     The  Chancellor  was  impressed  with  its 
having  taken  place  ;  and  in  truth,  the  respondents'  counsel 
admitted  it.     The  next  important  points  of  inquiry  are,  1st. 
Whether  the  money  which  had  been  paid  by  Mr.  Titus  to 
the  executor  of  Robert  Coe,  William  Furman,  and  which  ap- 
pertained to  the  respondents,  was  part  of  the  money  whereof 
Mr.  Furman  was  robbed  ?  and,  2d.  Whether  this  money 
was  ever  recovered  by  Furman  f  The  law  on  the  subject  of 
bailments,  and  with  respect  to   the  responsibility  of  fac- 
tors and  trustees,  is  as  firmly  settled  as  on  any  other  subject 
which  can  be  presented.     If  the  nature  of  the  bailment  or 
trust  be  such,  that  the  bailee  or  trustee  is  to  have  no  reward 
for  his  services,  the  law  will  not  require  of  him  any  greater 
diligence  than  he  usually  exercises  with  regard  to  his  own 
property  ;  and  it  seems  well  established,  "  that  if  a  trustee 
be  robbed  of  the  money  he  received,  he  shall  be  allowed  it  on 
account,  the  robbery  being  proved,  although  the  sum  is  only 
proved  by  his  own  oath  ;  for  he  was  to  keep  it  as  his  own  : 
so  in  case   of  a  factor,  for  he  cannot  possibly  have  other 
proof."     And  it  was  correctly  said  on  the  argument,  by  one 
of  the  appellant's  counsel,  that  it  would  be  bringing  an  exe- 
cutor, in  whom  the  testator  reposes  such  especial  confidence,. 


%Fonb.\l\ 


STATE  OF  NEW-YORK.  1Q6 

to  a  test  too  severe,  when  he  has  proved  a  robbery,  to  re-      ALBANY, 
quire  of  him  an  identification  of  the  money  belonging  to  the    ^^^  Li 
cestui  que  trust.     Such  severity  would  well  nigh  deter  any      u.  Forma* 
man  from  assuming  a  station  of  such  responsibility,  upon  j.coe&  others, 
the  calls  of  friendship,  and  without  any  possible  advantage  — — — -— 
to  himself.     It  is  objected,  that  William  Furman,  the  execu- 
tor of  Robert  Coe,  never  made  oath,  either  as  to  the  robbery, 
or  to  the  identity  of  the  money  belonging  to  the  respondents. 
It  has  been  answered,  and  I  think  satisfactorily,  that  there  is 
no  mode  pointed  out  for  a   trustee,   under  his  situation,  to 
have  pursued.     Had  he    made  an  affidavit,  it  would  have 
been  extrajudicial,    *and  of  no  more  importance  than  his  *  107 

own  declarations.  He  could  not  resort  to  a  court  of  chan- 
cery ;  because,  from  the  time  of  the  robbery  until  very  near 
the  time  of  his  death,  which  was  in  1783,  that  court  was 
shut.  What  means  could  he  have  pursued  under  the  then 
state  of  things,  which  he  did  not  ?  I  confess  myself  at  a  loss 
to  perceive  any  neglect  on  the  part  of  William  Furman,  in 
that  respect.  If,  then,  William  Fur  man  could  not  avail  him- 
self of  an  opportunity  to  make  the  oath,  which  most  cer- 
tainly will,  in  cases  of  this  kind,  protect  a  person,  as  to  the 
amount  of  the  sum  robbed,  what  shall  we  require  of  him 
that  he  did  not  do  ?  It  appears  from  the  deposition  of  Ro- 
bert Drummond,  that  immediately  after  the  robbers  had  re- 
tired, William  Furman  went  with  him  up  stairs,  where  it  is 
agreed,  by  all  the  witnesses,  the  money  was  deposited  ;  and 
that  he  then  stated  to  Drummond  the  amount  to  be  900/.  ; 
that  300/.  belonged  to  some  orphan  children,  of  the  name 
of  Coe;  and  that  he  was  an  executor  for  the  children.  Abi- 
gail Rhodes,  who,  from  her  situation  and  relationship  to 
William  Furman,  being  his  daughter,  may  be  presumed  to 
know,  states  in  positive  terms,  "  that  apart  of  the  money  of 
which  the  said  William  Furman  was  robbed  as  aforesaid, 
was  money  received  of  the  estate  of  Robert  Coe,  deceased, 
and  then  in  the  hands  of  the  said  William  Furman,  sen.  as 
executor  of  that  estate."  Mary  Boss,  who  is  spoken  of  as 
Polly  Thompson,  also  resided  in  the  family  of  William  Fur- 

x 


R.  Furman 

v. 

J.  Coe  is  others. 


%07  CASES  IN  ERROR  IN  THE 

ALBANY,      ™*n.     She  states,  that  he  was  robbed  of  all  the  money  he 
t804'   '      had  in  the  house  ;  and  that  the  next  morning  she  heard  him 
say,  that  all  the  money  belonging  to  the  grandchildren  of 
Robert  Ctewas  taken  by  the  said  robbers,  together  with  his 
-  own.     Mrs.  Rhodes  could  only  speak  of  the  money  belong- 
ing to  the  respondent ;  because,  on  the  third  of  August  be- 
fore the  robbery,  the  other  legatees  had  been  paid  their  pro- 
portions of  the  proceeds  of  the  real  and  personal  estate.     It 
appears  to  me,  that,  from  these  facts,  taken  collectively,  (and 
I  know  of  nothing  to  detract  from  them,)  it  must  be  mani- 
fest, that  the  money  belonging  to  the  respondents,  and  in  the 
hands  of  William  Furman,  was  taken  by  the  robbers,  together 
with  his  own.     Did  William  Furman  recover  this  money? 
The  only  witness  who  establishes  this  fact  is  John  Moore. 
His  character  appears  to  be  fair ;  to  his  declaration,  there- 
fore, great  weight  is  to  be  attached.     He  says,  "  that  he 
*  108  heard  ^William  Furman  say,  he  had  been  robbed  of  a  certain 

sum  of  money,  but  that  the  robbery  had  been  detected,  and 
the  money  recovered ;  and  that  he  had  got  the  same  again." 
To  believe  this  to  be  correct,  is  also  to  believe  William  Fur- 
man to  have  been  a  most  profligate  and  abandoned  charac- 
ter.    That  he  was  otherwise,  appears  from  the  confidence 
reposed  in  him  by  Robert  Coe,  and  the  proof  that  he  was  a 
man  of  good  character.     It  is  to  be  again  remembered,  that 
John  Moore  is  speaking  to  a  conversation  more  than  twenty 
years  past ;  and  it  would  be  going  too  far,  to  believe  that  he 
did  not  labour  under  some  mistake,  when  the  testimony  op- 
posing this  fact  shall  have  been  considered  and  weighed.    If 
William  Furman  made  the  declaration  imputed  to  him  by 
John  Moore,  there  can  be  no  satisfactory  reason  assigned  why 
it  should  have  been  confined  to  Moore  alone  ;  and  most  cer- 
tainly his  own  family  would  have  been  informed  of  such  sin- 
gular good  fortune.     Robert  Drummond states,  that  he  was 
sent  for  to  appear  as  a  witness  before  the  court-martial,  on 
the  apprehending  some  men  charged  with  the  robbery.    He 
did  appear,  but  could  not  identify  the  robbers,  in  consequence 
of  which  they  were  remanded ;  but  he  never  heard  or  un- 


STATE  OF  NEW-YORK.  108 

derstood,  that  the  money,  or  any  part  of  it,  had  been  re-     ALBANY, 
stored.     This  witness  had  the  best  means  of  knowing  the     i^^^j. 
fact  of  the  recovery  of  the  money,  had  it  happened.     This      it.  Furman 
testimony,  though  negative,  in  my  opinion  affords  a  strong  j. Coe Mothers, 
presumption  that  it  never  was  reclaimed.     Abigail  Rhodes 
and  Mary  Boss  both  unite  in  declaring,  that  they  never 
heard  that  any  part  of  the  money  taken  by  the  robbers  had 
been  recovered  ;  and  it  is  inconceivable,  it  the  fact  had  been 
otherwise,  that  they  should  not  have  heard  of  it  from  Mr. 
Furman.     John  Gosper  asserts,  that  he  heard  Mary  Boss, 
some   years  afterwards,  say,  "that  William  Furman  had 
been  very  lucky,  for  that  he    had   recovered  all  the  mo- 
ney he  had  been  robbed  of,  except  a  small  part."     This 
declaration  she  denies  ever  having  made;  and,  admitting 
that  it  detracts  from  her  credibility,  for  having  asserted 
facts  not  under  oath,  which  she  denies  when  under  oath, 
still  the  testimony  of  Drummond  and  Mrs.  Rhodes  remains 
unimpeached.      Howard  Furman,   who   appears  to   have 
lived  in  the  neighbourhood,  heard  of  the  robbery  the  day 
after  it  was  committed,  but  never  heard  that  the  money 
was  recovered.      Benjamin   Coe  was  told  of  the  robbery 
•in  1783,  by  William  Furman;  and  that  he  had  been  to  *  109 

New-Tori,  on  the  apprehending  some  soldiers  suspected, 
but  he  told  him  he  could  get  no  account  of  the  matter. 
Joseph  Robinson  was  told  in  1783,  by  William  Furman,  of 
the  robbery ;  and  that  it  amounted  to  900/.  of  which  500/. 
or  600/.  belonged  to  him.  He  says  nothing  of  its  having 
been  recovered.  Thomas  Burroughs  says,  he  was  inform- 
ed by  William  Furman  of  the  robbery  ;  and  that  he  had  been 
sent  for  to  New-York  to  fetch  the  money ;  but  he  did  not 
fetch  it,  as  the  person  having  the  charge  of  it  had  gone  to 
Kingsbridge.  Susannah  Coe  says,  she  has  heard  William 
Furman  say  he  was  robbed  of  a  purse  of  money ;  that  he 
had  seen  the  purse  and  the  money  again  in  Nexv-Tork;  and 
that  the  person  in  whose  charge  it  was,  had  gone  to  Kings- 
bridge.  It  is  manifest  that  the  last  witness,  to  say  the 
least  of  her,  must  have  been  mistaken  ;  for,  from  the  testi- 


109  CASES  IN  ERROR  IN  THE 

ALBANY,       mony  of  Dnanmond  and  the  other  witnesses,  the  money 

v  _    ,    was  in  bags  ;  and  it  is  somewhat  remarkable,  that  Mr.  Fur- 

K.  Farrow      man  could  have  seen  the  purse  and   money,  when  the  per- 

J.  Cue  L. 'others.  son   m  whose   charge   it  was,  was  absent  at  Kingsbridge. 

The  testimony  ef  Joseph  Burroughs  presents  nothing  but 

the  vaguest  hearsay,  and  deserves  no  consideration.  Up- 
on the  whole,  from  the  strictest  examination  of  the  evi- 
dence in  my  power,  it  appears  to  me,  that  the  weight  of 
evidence  is  decidedly  in  favour  of  the  appellant ;  that  the 
monev  was  not  recovered  :  therefore  I  am  for  reversing 
the  decree,  and  dismissing  the  bill  of  the  respondents  with 
costs  in  that  court.  I  have  not  noticed  the  pretended 
breach  of  trust,  on  the  part  of  William  Furman,  in  dispo- 
sing of  the  real  estate  of  Robert  Coe  at  private,  rather  than 
public  sale.  The  testimony  in  the  cause  abundantly  shows 
that  his  conduct  was  fair  and  honest.  If  he  really  mis- 
judged, in  either  the  time  or  mode  of  selling,  it  will  not 
warrant  me  in  saying,  contrary  to  the  proof,  that  he  was 
guilty  of  a  breach  of  the  trust  reposed  in  him.  There  are 
other  minor  points  in  the  cause,  the  decision  of  which  is 
rendered  unnecessary,  by  the  opinion  I  have  given.  There 
is  one  thing  yet  to  be  noticed  :  it  is  alleged  by  Susannah 
Coe,  that  she  applied  to  William  Furman  for  money  to  pur- 
chase necessaries  for  the  children,  and  that  he  refused,  say- 
ing, "  that  no  person  should  have  money,  on  account  of 
those  legacies,  until  the  children  were  of  age."  This,  it 
has  been  contended,  was  a  conversion  of  the  whole ;  or,  in 

*  110  other  words,  that  he   became   answerable  *for  the   whole 

amount  in  his  hands,  if  it  was  afterwards  robbed,  and  never 
recovered.  The  testimony  of  Mrs.  Coe,  on  this  point,  is 
very  loose  and  inconclusive.  She  furnishes  no  dates ;  and 
it  is  impossible  to  say,  whether  her  application  was  before 
or  after  the  robbery.  But  to  this  there  is  a  further  answer, 
that  Mrs.  Coe  had  no  right  to  make  the  demand,  unless  she 
was  guardian  to  the  children,  which  she  appears  not  to  have 
been.     Mr.  Futmarfs  refusal  to  an  unauthorized  person 


STATE  OF  NEW-YORK.  110 

cannot,  therefore,  in  law,  draw  after  it  the  consequences     Albany, 
which  have  been  contended  for. 


Ki  Furmart 

Livingston,  J.     The  questions  in  this  cause  are  princi-  j  Coe  £  oti,ers. 

pally  questions  of  fact.     They  involve  the  robbery  of  the 

intestate,  and  the  subsequent  recovery  of  the  money.  That 
William  Fur  man  was  robbed,  can  admit  of  no   doubt ;  the 
testimony  to  this  point  is  full  and  conclusive.     His  honour 
the  Chancellor  regarded  it  in  that  light ;  nor  can   any  who 
will  read  the  depositions  entertain  a  different  opinion.    The 
want  of  Furmati's  own  oath  (which  indeed  could  not  have 
been  taken,  except  in  an  extrajudicial  way)  is  abundantly 
supplied  by  other  proof.     There  is  as  little  difficulty  in  de- 
termining that  the  money  of  the  complainants  was  taken, 
as  well  as  his  own.     Some  of  the  witnesses,  who  establish 
the   robbery,  expressly  state  that  part  of  the  money   of 
which  he  was  robbed  belonged  to  the  estate  of  Robert  Coe, 
deceased.     Considering  the  manner  of  the  robbery,  which 
was  perpetrated  in  the  night,  by  several  armed  men,  who 
must  of  course  have  had  a  complete  control  over  the  dwell- 
ing-house and  all  its  inhabitants,  it  is  not  probable  they  left 
any  money,  worth  speaking  of,  behind.     Whether  the  mo- 
ney was  regained,  is  a  question  of  more  difficulty;  and  yet 
on  the  proof  before  us,  my  opinion  would  be  in  the  nega- 
tive.    There  is  no  one  witness,  except  jfohn  Moore,  who 
deposes  affirmatively  on  this  point;  and  although  a  man  of 
character,  it  is  probable  either  that  he  has  committed  some 
mistake,  which  would  not  be  extraordinary,  after  so  great 
a  lapse  of  time,  or  that  some  circumstance  is  omitted,  as  to 
time   and  place,  which  would  give  a  very  different  com- 
plexion to  his  testimony.     Perhaps  the  declaration  of  Fur- 
man,  which  he  speaks  of,  was  made  after  he  had  heard  of 
the  detection  of  the  robbers,  and  when  he  of  course  ex- 
pected to  recover  the  money.     Some  explanation  is  wanted 
from  this  witness,  to  reconcile  his  testimony  with  the   de- 
claration of  the  other  witnesses,  and  the  conduct  of  Furman 
to  other  persons.     How  *happens  it,  that  none  of  the  per-  *  1 1 1 


Ill  CASES  IN  ERROR  IN  THE 

ALBANY,      sons  who  resided  in  his  family  ever  heard  this  money  was 

v    _ 8°  —   J    recovered,  or  that  Furman,  who  bore  the  character  of  an 

r.  Fut-man      honest  man,  never  mentioned  so  important  a  circumstance 

J.  Coe  &  others,  to  any  but  Mr.  Moore  ?  Or  that  the  recovery  of  this  m    ley 

did  not  become  a  matter  of  as  great,  or  indeed  greater, 

notoriety  in  the  neighbourhood,  than  the  robbery  ?  The 
money  could  not  have  been  returned  in  secret.  It  would 
have  been  known  to  many ;  it  would  have  been  the  subject 
of  conversation  throughout  the  neighbourhood  ;  it  would 
not  have  been  in  the  power  of  an  artful  man  to  have  sup- 
pressed a  knowledge  of  such  an  incident.  An  honest  man, 
as  Furman  was,  would  have  had  no  motive  to  attempt  it. 
But  notwithstanding  the  strong  inclination  of  my  opinion 
in  favour  of  the  appellant  on  this  point,  it  is  one  of  those 
cases  which  ought  to  be  submitted  to  a  jury.  A  more  full 
and  satisfactory  examination  can  thus  take  place,  and  there 
will  be  less  danger  of  error  in  that  way,  than  if  we  take  the 
decision  of  it  upon  ourselves.  My  opinion  therefore  is, 
that  his  honour  the  Chancellor  be  ordered  to  direct  a  feign- 
ed issue  to  be  tried  between  the  parties  at  common  law,  to 
determine  whether  any  and  what  part  of  the  moneys  of 
which  William  Furman,  as  executor  to  the  last  will  and 
testament  of  Robert  Coe,  deceased,  was  robbed,  during  the 
late  war  between  the  United  States  and  Great  Britain,  was 
at  any  tune  and  when  recovered  by  him  ;  and  that  all  fur- 
ther directions  be  reserved,  until  the  trial  of  such  issue. 
Some  complaint  was  made  against  the  sale  of  the  real 
estate.  This  complaint  was  without  cause.  The  Chan- 
cellor considered  it  so ;  and  I  entirely  concur  in  this  part 
of  his  opinion.  The  sale  was  fair,  well  intended,  for  a  full 
value,  and  I  think  well-timed.  Although  money  produced 
little  or  no  interest  on  Long-Island,  during  the  war,  the 
farm  would  not  have  yielded  any  great  rent,  and  might, 
rind  probably  would  have  suffered  much.  It  was  also  said 
that  William  Furman,  by  refusing  to  advance  any  money  to 
Susannah  Coe,  for  the  complainants'  support,  was  guilty  of 
a  breach  of  trust,  and  on  the  principle  established  in  the 


STATE  OF  NEW-YORK.  Ill 

case   of  Le  Guen  v.  Gouverneur  fc?  Kemble,    he  became     ALBANY, 
liable,  from  that  moment,  for  the  whole  fund  in  his  hands,    i^^^y 
and  that  therefore  no  subsequent  robbery  could   shield  him      r.  Furman 
from  a  responsibility  to   that  extent.      I  cannot  perceive  j.  Coe  &  others, 
how  the  case  cited  bears  on  the  one  under  review.     In  Le 
Guen  v.  Gouverneur*  &  Kemble,  nothing  more  was  decided,  *  112 

according  to  my  understanding  of  it,  than  that  factors,  who 
were  in  advance,  and  under  heavy  responsibilities  for  their 
principal,  had  no  lien  on  his  securities  in  their  hands,  and 
that  in  a  special  action  on  the  case  against  them  for  mis- 
conduct, it  was  not  only   unnecessary  in  the  plaintiff  to 
prove  a  special  damage,  but  incompetent  for  the  defend- 
ant to  show  their  principal  had  been  benefited  by  this  al- 
leged misconduct.     If  Furman  was  guilty  of  a  breach  of 
trust,  it  could  only  be  for  so  much  as  was  necessary  for 
the  support  of  these  children  ;  but  that  could  not  affect  the 
surplus,  which  must  have  remained  in  his  hands  after  ad- 
vancing what  Susannah  Coe  asked  of  him.     It  is  however 
sufficient  to  say,  that  Mrs.  Coe  had  no  right  to  make  this 
demand,  and  that  it  does  not  appear  with  sufficient  certain- 
ty that  it  was  made. 

In  this  last  opinion  Kent,  J.  concurred,  contra  Lewis, 
C.  J.  who,  with  the  majority  of  the  court,  being  for  a  re- 
versal, the  decree  was  accordingly  reversed  in  tpto. 


112  CASES  IN  ERROR  IN  THE 

James  Grant  and  others,  Appellants, 
And   the    President,    Directors,    and ) 

Company  of  the  Bank  of  the  United  >  Respondents. 
States,  ) 

James  Grant,  Appellant, 

And  James  Bissett,  Nathaniel  Law- 
rence, Thomas  Morton,  the  Presi- 
dent, Directors,  and  Company  of 
the  Bank  of  the  United  States,^ 
Richardson  Underhill,  and  Henry 
Kemsen, 

Registered       JAMES  BISSETT,  being  seised  in  fee  of  four  lots  in 

mortgages  must 

be  paid  off  ac-  the  city  of  Nexu-Tork,  on  the  10th  of  May,  1800,  mortgaged 

datesof    their  to  Peter  Onderdonk  in  fee,  three  of  them,  for  $1,125.  On  the 

doctrine  of  tack^  ^0tn  of  the  same  month,  this  mortgage  was  duly  registered, 

ing  does  not  ap-  and  shortly  after  fairly  assigned  to  the  president,  directors 

ply   between  re-  J  jo  i  » 

gistered  mortga-  and  company  of  the  bank  of  the  United  States,  for  a  full  con- 
sideration. On  the  12th  of  June,  1800,  Bissett  mortgaged  all 

*  113  *the  four  lots  to  John  Taylor,  in  consideration  of  g2,500. 

This  consideration  was  made  up  in  the  following  manner : 
g506  cash  paid  to  Bissett ;  $857  agreed  to  be  laid  out  on 
the  premises,  and  $1, 147  in  debts  due  to  Taylor  and  others, 
assumed  by  him  on  account  of  the  mortgagor.  On  the 
27th  of  the  same  month  of  June,  Taylor  assigned  the  bond 
and  mortgage  to  Alexander  McGregor,  who  refunded  to  Tay- 
lor §476  he  had  paid  to  Bissett,  and  entered  into  the  respon- 
sibilities Taylor  had  assumed,  for  the  performance  of  which 
McGregor  offered  to  give  Bissett  his  bond.  On  the  day  fol- 
lowing, the  28th,  this  mortgage  also  was  duly  registered.  On 
the  2d  of  July  following,  Bissett  mortgaged  to  the  president, 
directors,  and  company  of  the  bank  of  the  United  States,  for 
£  1,950,  the  three  lots  before  mortgaged  to  Onderdonk,  and 
they,  on  the  same  day,  caused  their  mortgage  to  be  duly  re- 
gistered. On  the  third  of  June,  1801,  McGregor  assigned  to 


STATE  OF  NEW-YORK. 


113 


James  Grant,  the  appellant,  the  mortgage  to  Taylor.     After 
these  transactions,  Bissett  becoming  a  bankrupt,  the  bank 
filed  a  bill  in  chancery  against  him,  his  assignees,   Taylor, 
M-Gregor,  the  appellant,  and  several  others  of  the  mortgage 
and  judgment  creditors  of  Bissett,  praying  that  they  might 
be  ordered  to  come  in  and  redeem  both  the  mortgage  to 
Onderdonk,  and  that  to  the  bank,  or  that  the  premises  might 
be  sold  to  discharge  what  was  due  upon  them.     To  this  " 
bill  Grant  appeared  and  answered,  insisting  that  as  the  bond 
fide  holder,  by  assignment  of  the  mortgage  second  in  date 
and  time  of  registering,  he  had  a  right  to  be  paid  out  of  the 
mortgaged  premises  next  after  the  mortgage  to  Onderdonk. 
Grant,  as  assignee  of  the  mortgage  to   Taylor,  filed  also  his 
bill  against  Bissett,  his  assignees,  the  president,  directors, 
and  company  of  the  bank  of  the  United  States,  and  other 
mortgage  creditors  of  Bissett,  praying  that  the  lot  of  ground 
mortgaged  to  Taylor,  and  not  included  in  the  mortgage  to 
Onderdonk,  might  be  sold,  and  the  proceeds  applied  exclu- 
sively to  the  discharge  of  Taylor's  mortgage  ;  and  as  to  the 
other  three  lots,  that  they  might  be  sold,  and  the  money 
arising  thereby,  be  appropriated  in  the  first  place  to  the  pay- 
ment of  the  mortgage  to  Onderdonk,  and  after  satisfying  the 
same,  that  the  surplus  should  go  to  make  up  the  deficiency, 
if  any,  which  might  arise  in  satisfying  the  mortgage  to  Tay- 
lor, by  the  sale  of  the  fourth  lot.     To  this  latter  bill  all  the 
defendants,  except  *the  president,  directors,  and  company  of 
the  bank  of  the  United  States,  appeared,  answered  severally, 
and  virtually  disclaimed  or  submitted  to  the  judgment  of 
the    court.       The  bank,  however,  answering  under  their 
common  seal,  alleged,  that  when  they  took  their  mortgage 
on  the  2d  of  July,  1 800,  they  had  no  notice  of  that  to  Tay- 
lor, and  that  holding  the  first  mortgage  in  fee  to  Onderdonk, 
they  had  a  right  to  insist  on  being  first  paid  the  amount  of 
both  securities.     They  also  alleged  fraud  in  Taylor,  in  pro- 
curing  his  mortgage  from  Bissett.     Both  causes  being  at  is- 
sue, came  on  by  consent  together.     In  that  by  the  bank  of 
the  United  States,  the  complainants  did  hot  examine  any 


ALBANY, 

1804. 


J.  Grant  and 

others 

v. 

U.  S.  Bank. 

J.  Grant 

v. 

J.  Bissett  and 

others. 


*  114 


114 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1804. 


U.  S.  Bank. 

J.  Grant 

v. 

J.  Bissett  and 

others. 


witnesses.  In  that  by  Grant,  he  examined  two  witnesses? 
who  were  cross-examined  by  the  bank,  one  of  whom  proved 
personal  notice  of  the  mortgage  to  Taylor,  to  one  of  the  di- 
rectors before  the  mortgage  to  the  bank,  and  both  proved  the 
mortgage  held  by  Grant  to  have  been  given  for  a  full  con- 
sideration. The  only  evidence  to  impeach  this,  was  derived 
from  an  answer  of  one  of  the  persons  made  a  co-defendant 
with  Grant,  against  the  reading  of  which  he  strenuously  ob- 
jected. It  was,  however,  decreed,  that  the  bank  should  be 
first  paid  out  of  the  proceeds  of  the  sales  of  the  three  lots, 
the  amount  due  on  both  the  mortgages,  held  by  them,  be- 
fore any  part  thereof  should  be  applied  to  the  satisfaction  of 
the  mortgage  held  by  Grant,  which  it  was  decreed  should 
not  be  deemed  a  valid  security  for  the  amount  mentioned 
therein  ;  but  that  it  should  be  referred  to  a  master,  to  in- 
quire what  part  thereof  had  been  actually  advanced  to,  or 
for  the  use  of  Bissett,  either  by  Taylor  or  McGregor,  and 
that  so  much  only  as  the  master  should  find  and  report  thus 
due,  should  be  allowed  and  paid  to  Grant,  in  satisfaction  of 
his  mortgage,  out  of  the  proceeds  of  any  of  the  mortgaged 
premises.  These  decrees  being  appealed  from,  his  honour 
the  Chancellor  now  assigned  his  reasons. 


*  115 


Mr.  President — On  this  case,  it  will  be  necessary  to  de- 
termine, 1.  In  what  order  the  mortgages  in  question  are  to 
be  satisfied  2  2dly.  What  ought  to  be  the  amount  of  satis- 
faction, as  to  the  one  executed  to  Taylor  ?  As  connected 
with  the  first  question,  the  right  oftackinghas  been  denied  ; 
but  our  registering  act,  it  appears  to  me,  is  not  dissimilar  in 
its  provisions,  and  certainly  similar  in  its  object,  to  those  re- 
ferred to  in  the  authorities  cited.  Both  the  British  and  our 
*act  are  calculated  to  afford  a  test,  to  determine  the  priority 
of  satisfaction,  as  relating  to  mortgages  on  the  same  subject, 
leaving  all  other  legal  and  equitable  consequences  to  attach, 
as  if  the  registry  had  not  existed.  I  take  it,  therefore,  the 
doctrine  of  tacking  has  not  been  altered  by  our  statute,  re- 
quiring the  registry  of  mortgages.     The  complainants,  in 


STATE  OF  NEW-YORK.  H* 

their  answer  to  the  bill  of  the  defendant,  Grant  expressly  de-      ALBANY, 

r    ,  rr,  1804. 

riy  their  knowledge  of  the  existence  of  the  mortgage  to  I  ay- 
lor,  and  his  deposition  discloses  no  facts   which  can  affect 
them  with  notice  prior  to  the  execution  of  the  mortgage  to 
them  ;  for,  though  he  deposes  that  he  gave  the  information 
of  the  circumstances  attending  the  taking  of  his  mortgage  to 
Robert  Lenox,  one  of  the  directors,  he  does  not  ascertain 
the  time  otherwise  than  by  declaring,  that  "he  thinks  it  was 
before  the  said  president  and  directors  had  taken  their  mort- 
gage."    This  is  too  vague  and  indeterminate,  and  hence  it 
is  not  necessary  to  give  an   opinion  on  the  question,  whe- 
ther the  notice,  if  fully  proved,  was  well  given  to  a  director  ? 
If  the  complainants  had  no  notice  of  the  existence  of  Tay- 
lor's mortgage,  they  are  completely  within  the  rules  adopted 
by  this  court,  on  the  subject  of  tacking;  but  it  can  app  lyon- 
ly  to  the  lots  mortgaged  to  them,  and  the  fourth  lot  must  be 
exclusively  appropriated  to  satisfy  the  mortgage  to  Taylor  s 
but  it  appears  that  $857  79  cts.  of  the  sum,  for  which  it  pur- 
ports to' have  been  given,  were  to  be  applied  to  the  improve- 
ment of  the  mortgaged  premises,  and  there  is  no  evidence 
that  it  has  been  so  applied :    and  it  appears  from  the  an- 
swers and  depositions  of  the    defendants,  that  this  point, 
though  that  was  not  necessary,  as  they  took  their  assign- 
ments subject  to  all  equities,  has  been  invariably  attended 
to,  in  the  several  transmutations  of  the  mortgage.     Hence, 
there  is  not  die  least  ground  for  permitting  it  to  be  retain- 
ed by  Grant,  the  assignee.     It  must,  therefore,  be  referred 
to  a  master,  to  ascertain  the  amount  due  on  the  two  mort- 
gages to  the  complainants  and  Ondcrdonk,  and  the  sum  due 
on  the   mortgage  executed  to    Taylor;  but  in  making  the 
statement  on  the  latter,  the  sum  of  g857  79  cts.  with  the  in- 
terest accrued  thereon,  must  be  deducted,  unless  it  shall  ap- 
pear to  the  master  that  any  part  of  that  sum  has  been  ac- 
tually applied  to   finishing  the  houses  erected  on  the  mort- 
gaged premises,  in  which  case  proper  allowances  must  be 
inade  for  the  expenditure.     The  question  of  costs,  and  all 


116* 


CASES  IN  ERROR  IN  THE 


ALBANY, 

1804. 


others. 


other  directions,  *to  be  reserved,  until  the  coming  in  of  the 
master's  report. 


Piggs,  for  the  appellant.  We  come  before  this  court, 
insisting  on  the  right  of  James  Grant,  as  holder  of  a  second 
/.  Bissett  and  mortgage,  duly  registered,  to  be  satisfied  in  preference  to 
a  third  mortgage,  given  and  registered  subsequent  to  the 
second,  though  such  third  mortgage  is  held  by  the  same 
person  who  has  a  first  mortgage,  registered  previous  to  our 
second.  Against  this  right,  the  English  doctrine  of  tack- 
ing is  relied  on.  But  with  them  there  is  no  general  regis- 
ter act,  as  with  us.  Their  statutes  on  this  subject  are  par- 
tial laws  ;  and  among  the  variety  of  decisions  reported  up- 
on them,  there  is  not  one  where  the  contest  has  been  be- 
tween two  registered  mortgages.  It  may  not,  however,  be 
useless  to  examine  how  far,  on  the  principles  of  the  British 
adjudications,  their  rules  will  apply  to,  and  support,  the 
present  decree.  It  is  a  maxim  with  them,  that,  if  a  first 
mortgage  be  purchased  in,  to  aid  a  junior  encumbrance, 
such  first  mortgage  must  be  forfeited.  1  Pow.  on  Mart. 
531.  In  the  present  case,  the  mortgage  money  was  not 
payable  before  the  end  of  the  year,  and  the  assignment  to 
the  bank  was  within  four  months.  On  this  ground,  there- 
fore, the  law  is  against  the  bank.  There  is  also  another. 
To  enable  a  puisne  mortgagee  to  tack,  he  must  have  lent 
his  money  without  notice  of  the  mesne  encumbrances.  1 
Pow.  on  Mort,  537.  3  Atk.  238.  j  2  Vern.  271 4  2  Fonb. 
301.  n.  (b).  The  evidence  of  notice  to  the  bank  is  com- 
plete. Their  denial  not  being  upon  oath,  but  under  seal, 
cannot  weigh  against  the  testimony  of  Taylor,  and  is  in 
itself  an  absolute  nullity.  For  as  a  body  corporate,  having 
neither  soul  nor  conscience,  they  cannot  be  sworn,  and  are 
not  liable  to  be  punished  for  perjury.  Against  them,  there- 
fore, and  their  denial,  the  evidence  of  one  witness  is  suf- 
ficient, though,  unaccompanied  by  circumstances,  it  might 
not  avail  against  a  natural  person.  Though  the  notice  was 
not  to  the  president,  yet,  being  to  a  director,  it  is  good  pre- 


\Mead  v.  Ld 

Orrery. 

*  Saunders   v. 

Dehew. 


STATE  OF  NEW- YORK.  116 

sumptive  notice  ;  and  by  such,  a  party  is  as  much  affected,  ALBANY, 
as  by  actual  intimation.  2  Fonb.  146  to  1 55.  Besides,  as 
our  act  is  general,f  the  registering  alone  ought  to  be  con- 
sidered as  notice.  It  is  enough  to  set  a  person  on  inquiry, 
and  that  has  always  been  held  sufficient  to  affect  with  no- 
tice. 1  D.  &  E.  755.%  With  us,  registering  is  like  j.  BiJett  and 
docketing  of  judgments,  and  that  is  invariably  deemed  to  °     "' 

*make   a  purchaser  take  subject  to  the  charge.     Mr.  Poxv-  fin  CoBetv.  He 

.  ....  Gotfsand  Ward, 

ell,  in  his  treatise,^  does,  we  admit,  state  as  his  opinion,  fVi-esf.65.it  was 

that  the  doctrine  of  tacking  would  be  allowed  between  re-  publication     in 

gistered  mortgages.     It  is,  however,  but  his  opinion,  and  Jjj®   ^JjgJJ  °f 

that  upon  the  operation  of  the  2  and  3  Anne.  c.  4.  and  the  pommission     of 

1  l  bankrupt,  is  no- 

7  Anne.  c.  20.     But  those  statutes  have  not  such  words  as  ticc  to  all   the 

-world,     because 

our  act.     Our  law  says,1f   "  In  case  of  several  mortgages  Bueh  as  is  pre. 

-    ,  .  i  r-      i  scribed  by  an  acr. 

of  the  same  premises,  or  any  part  thereof,  the  mortgage  or  0f  parliament,  in 
mortgages  which  shall  be  first  registered,  shall  have  prefer-  ^{j ;  *  implied1 
ence  in  all  courts  of  law  and  equity,  according  to  the  times  \GoodHtle  v. 
of  the  registry  of  such  mortgages  respectively."     If  the  de-  *  117 

cree  complained  of  is  permitted  to  stand,  this  part  of  the  iji  jf^,.  Law, 
act  is  repealed.  As  to  the  sums  actually  advanced  by  Tay-  4S1' stL"  °" 
lor,  McGregor  and  Grant,  if  any  investigation  of  them  was 
to  take  place,  it  ought  to  have  been  by  examination  of  wit- 
nesses, and  not  before  the  master ;  besides,  it  is  sworn  that 
they  were  to  the  full  value,  and  against  this  the  answer  of  a 
co-defendant  could  not  be  read  ;  for  there  is  no  rule  better 
established,  than  that  the  answer  of  one  defendant  shall  not 
be  read  against  another.**   2  Ves.  iun.  11.++     %Atk.  303.±t  **  WHere    ,hn 

°  defendant     pro> 

Ibid.  39. §§  fe»»w  »°t  to  **• 

collect, but  states 
that  another  de- 

Van  Veehten,  for  the  respondents.  It  is  a  settled  princi-  the  filet,  thean- 
pie,  that  where  equitable  and  legal  titles  unite,  they  shall  g^jj  ^  *£ 
overbalance  those  which   are   merely  equitable.     For  the  ferred  to  mnybc 

J        A  read  Mains!  him. 

equities  being  equal,  neither  the  one  nor  the  other  has,  on  l  P-  ntn$.  ato 

.  .  -  t\  Jours  \.  Tur- 

the  score  of  conscience,  any  claim  to  a  preference  over  the  berviUe. 
other ;  there  can  then  exist  no  kind  of  reason  for  disturb-  />,.,■. 
ing  or  taking  away  the  legal  rights  and  estate  of  the  other.  ^ 1L 
The  courts  have,  therefore,  always  left  the  party  having 


117  CASES  IN  ERROR  IN  THE 

ALBANY,  both  the  legal  and  equitable  estate,  in  full  possession  of  his 
rights.  2  Pow.  on  MorU  636  to  644.  Wherever  legal  and 
equitable  estates  meet,  the  union  is  held  to  destroy  all  mesne 
equities.  Stra.  240.f  From  these  positions  has  been  de- 
rived the  doctrine  of  tacking.  The  act  does  not  vary  the 
law  on  this  point.     It  orders,  that  they  shall  be  paid  accord- 

J.  Bissett  and  \  .'        .  (        .  ,  ,  • 

others.  ing  to  the  dates  or  their  registering,  that  is,  where  there  is 
~  only  a  set  of  successive  encumbrances  regularly  appearing. 

Yates.  But  it  does  not  prevent  attaching  to  the   first  registered 

mortgage  subsequent  rights,  which  enable  the  puisne  mort- 
gagee to  protect  his  estate,  by  that  which  he  acquires.  For 
as  the  act  is  meant  to  operate  only  between  registered  and 
unregistered  mortgages,  when  all  are  registered,  they  stand 

*  118  as  if  the  act  had  never  passed.     The  puisne  mortgagee  *has, 

by  his  diligence,  acquired  a  preference.  If  the  registering 
is  to  be  notice,  then  the  second  mortgagee  has  been  guilty 
of  a  laches,  in  not  purchasing  in  the  first  mortgage,  to  pro- 
tect himself.  Not  having  done  so,  we  had  a  right  to  do  it, 
and  to  cover  our  equitable,  by  Onderdon/i s  legal  estate. 
The  difference  between  the  effect  of  general  and  particular 
statutes,  is  imaginary.  The  only  actual  one  is,  that  under 
one,  you  must  search  in  all  cases  ;  under  the  other,  only  in 
those  arising  within  a  specific  county.  The  principles  to 
regulate  in  each  are  the  same,  for  the  law  is  in  both  the 
same,  though  the  limits  within  which  it  is  to  be  applied  are 
different.  The  notice  relied  on,  was  not  given  to  the  pro- 
per person ;  it  ought  to  have  been  to  the  head  of  the  corpo- 
ration, the  president.  It  is  not,  however,  sufficiently  al- 
leged j  it  is  merely  "  as  he  thinks."  It  ought  to  have  been 
strongly  evidenced,  and  such  as  to  almost  impute  a  fraud.  2 
Pow.  on  Mort.  639.  Jollandv.  Stambridge,  3  Ves.  jun.  478. 
But,  allowing  all  the  force  asserted  to  the  provisions  of  our 
act,  still  it  can  never  be  contended,  that  they  were  meant,  by 
merely  registering,  to  protect  fraud.  It  is  in  evidence,  from 
the  confessions  of  one  of  the  defendants,  that  the  full  value 
for  which  the  mortgage  was  given,  has  not  been  paid  ;  and 
as  Grant,  in  his  answer,  states  his  title  to  have  been  derived 
2 


STATE  OF  NEW- YORK.  118 

from  Taylor,  he  refers  to  what  Taylor  says  respecting  that      ALBANY, 
title,  and  makes  his  anwer  evidence   for  the  reasons  in  the    y_ 
anonymous  case,  in  1   P.  Wins.  300/f  and  Wyatfs  Prac.     J.  Grant  and 

t>  wf  others 

Peg.  75.  v. 

U.  S.  Bank. 
J.  Grant 

Hamilton,  in  reply.     Allowing  the  doctrines  of  the  other    j  Bis8£tt     d 
side  to  be  correct,  as  to  the  reasons  on  which  tacking  has  others, 

been  introduced,  and  that  the  registering  a  mortgage  is  no-  |  See  ante,p.u~. 
tice  to  the  second  mortgagee,  it  must  equally  be  so  to  the  note  there 
third,  and  then  a  third  mortgagee  can  never  stand  on  equal 
equity  with  a  second.  This,  therefore,  subverts  ail  the  ar- 
gument, as  to  the  equal  equity  on  which  tacking  is  said 
partly  to  rest.  But  the  decisions  in  England  can  never,  on 
this  subject,  be  applicable  to  cases  here.  The  words  of  our 
law  take  them  out  of  the  operation  of  the  English  prece- 
dents. They  proceed  on  the  settled  maxims  of  their  courts. 
They  are  not  directed  or  controlled  by  the  statute  law ;  for 
the  2d  and  3d  and  the  7th  of  Anne,  do  not  propose  the  regu- 
lation of  registered  securities.  The  act  of  our  legislature 
was  framed  for  the  purpose  of  settling  their  priorities.  Its 
object  was  to  secure  lenders  of  money.    *This  cannot  be  ef-  *  119 

fected,  if  the  construction  on  the  other  side  prevail.  A  se- 
cond mortgagee,  after  due  search,  may  repose  on  the  estate 
being  adequate  to  the  payment  of  his  demand,  and  that  of 
his  senior  encumbrancer ;  the  very  next  day  a  cunning  or 
colluding  third  person,  lends  a  further  sum,  takes  in  the  first 
mortgage,  and  cuts  out  the  second.  The  principle  of  tack- 
ing encourages  fraud ;  it  supersedes  that  necessity  of  search- 
ing public  offices,  which  ought  always  to  be  induced,  when 
title  deeds  are  not  shown  to  the  iender.  This  not  being  done, 
ought  to  lead  to  inquiry,  the  neglect  of  which  is  what  the 
Lord  Chancellor,  in  1  Eq.  Cas.  331.  calls  filthy  negligence.^  *  Crassa  negf. 
The  express  words  of  our  law  are  our  reliance.  Thev  de»  ffe"  '"' 
stroy  all  that  system  of  artificial  reasoning,  as  to  taking  in 
the  legal  estate  to  protect  the  equitable  ;  for,  by  the  act,  a 
priority  at  law  is  given  to  a  second  registered  mortgage  over 
a  third;  nay,  it  gives  also  inter  minis  a  superior  equity,  and 


119  CASES  IN  ERROR  IN  THE 

ALBANY,      this  on  equitable  principles ;  for,  where  there  is  a  law  or- 
\     tS04l    /     daining  a  registry  to  be  made  or  mortgages,  search  and  in- 
J.  Giant  and     quiry  at  the  office  is  at  least  an  equitable  duty.     As   to  the 
v.  denial  of  notice  by  the  bank,  under  their  seal,  it  is  enough 

j  Grant  t0  sav>  ^e  oruv  reason  wny  an  answer  is  evidence,  is  from 
T  Bi  V  tt  •  1  being  under  oath.  Whatever  is  not  so,  cannot  be  testimony, 
others.  except  as  to  records,  and  cases  of  confession.  That  there 
was  not  an  original  full  valuable  consideratien  from  Taylor, 
allowing  it  to  be  so,  is  nothing  to  Grant;  for  a  transferable 
security,  though,  in  its  origin  made  on  a  less  consideration 
than  it  purports,  becomes,  in  the  hands  of  a  bondjide  as- 
signee, operative  to  its  full  amount.  Even  fraud,  except 
where  positive  law  creates  the  security,  is,  by  a  fair  assign- 
ment, for  full  and  valuable  consideration,  purged,  so  far  as 
it  respects  the  assignee.  The  inquiry,  therefore,  into  the 
sums  advanced  by  Taylor  and  McGregor,  is  not  to  be  sup- 
ported. The  nature  of  the  considerations  cannot  be  ques- 
tioned. Money  paid,  money  to  be  laid  out,  and  assumptions 
of  debts — both  law  and  equity  must,  and  do,  allow  their  va- 
lidity. On  every  ground,  therefore,  we  contend  the  decree 
must  be  reversed. 

Spencer,  J.  The  Chancellor  has  adopted  the  rule  of  the 
court  of  chancery  in  England,  which  is,  that  where  parties 
have  equal  equity,  and  one  of  them  has  a  legal  advantage, 
not  to  deprive  the  one  of  the  legal  preference  he  has  obtained. 
That  this  rule  is  established  there,  I  fully  agree  ;  and,  unless 
our  statute  has  created  a  rule  on  this  subject  peculiar  to  our 
*  120  *own  jurisprudence,  I  shall  acquiesce  in  this  part  of  the  de- 

cision. For,  I  do  not  think  that  the  registering  the  mort- 
gage is  upon  legal  principles  notice  of  its  existence  ;  though, 
were  the  point  now  for  the  first  time  to  be  decided,  I  should 
concur  that  it  ought  so  to  be  considered;  the  contrary,  how- 
ever, is  too  well  established  to  be  drawn  in  question.  Nor 
do  I  consider  the  notice  given  by  Mr.  Taylor  to  Robert  Le- 
nox, either  actual  or  constructive  notice.  It  is  left  quite  un- 
certain at  what  period  this  notice  was  in  fact  given  ;  and,  if 


STATE  OF  NEW-YORK.  120 

given  in  time,  it  does  not  appear  that  Mr.  Lenox  was  pre-  ALBANY, 

sent,  when  Bissctt  became  indebted  to  the  bank,  or  gave  the  ^~^-^> 

mortgage,  or  that  Mr.  Lenox  ever  communicated  it  to  the  J-  ^J]^™11 

board.     They  deny  such  notice  by  their  answer;  and,  al-  ^t  svBaik 
though  it,  is  not,  nor  could  it  be  under  oath,  yet  it  is  cer-        J.  Grant 

tainlv  sufficient  to  repel  the  vague  testimony  of  Mr.  Taylor,  j,  Bissett  ami 

J  r  •  others. 

This  brings  me  to  the  consideration  of  our  statute  concerning  .  

mortgages.     It  provides,  that,  "  in  case  of  several  mort- 
gages of  the  same  premises,  or  any  part  thereof,  the  mort- 
gage or  mortgages,  which  shall  be  first  registered,  shall  have 
preference   in  all  courts  of  law  and  equity,  according  to 
the  times  of  the  registry  of  such  mortgages  respectively." 
It  appears  to  me,  that  the  statute  has  abolished,  with  respect 
to  registered  mortgages,  the  right  of  tacking  a  junior  to  a 
senior  mortgage,  and  thus  excluding  an  intervening  one. 
They  afe  to  have  preference  in  all  courts  of  law  and  equity, 
according  to  the  times  of  their  respective  registry.     To 
allow  a  junior  mortgage  to  be  paid  first,  is  denying  to  an 
elder  mortgage  the  preference  the  statute  has  given.      The 
statutes   of  2d  and  3d  Anne,  c.  4.  and  7th  Anne,  c.  20. 
though  affording  a  preference   to  registered  over  unregis- 
tered mortgages,  do  not  determine,  as  our  statute  does,  the 
preference  they  are  to  have,  or  in  what  order  registered 
mortgages  are  to  be  redeemed  or  satisfied.     Though  it  was 
truly  observed  by  the  appellants'  counsel,  that  there  are  no 
decisions  in  England  to  be  met  with,  denying  the  principle 
now  advanced.     I  am,  therefore,  of  opinion,  that  in  this  re- 
spect, the  decree  of  his  honour  the  Chancellor  ought  to  be 
reversed.     The  remaining  question  is,  whether  the  mort- 
gage held  by  Grant  is  to  be  considered  a  valid  security,  for 
the  amount  therein  mentioned,  and  thereby  secured  ?  It  will 
be  proper,  first,  to  consider,  what  is,  and  what  is  not  evidence 
in  the  cause.     In  the  bill  filed  by  the  bank  against  Grant 
and  ^others,  John  Taylor  and  Alexander  M'Gr^or  are  made  *  121 

co-defendants,  and  the  respondents' counsel,  considering  some 
parts  of  their  answers  as  operating  in  their  favour,  have 
dwelt  upon  the  facts  disclosed  by  them.     I  have  no  hesitation 


'/ 


121  CASES  IN  ERROR  IN  THE 


ALBANY,      in  saying,  that  the  answer  of  one  co-defendant  is  evidence 

V^^-y-^y    neither  for  nor  against  the  other.     The  authorities  cited 

J.  Grant  aud     maintain  this  position.     It  appears  from  exhibits  and  testU 

v-  mony,  that  the  consideration  of  the  mortgage  given  by  Bis- 

U.  S   Bank.  F  ,  .       rr,      .  n . 

J.  Grant        sett  to  Taylor,  was  money  advanced   by  lay  lor  to  tiissett, 

J.  Bislett  and    money  owing  by  Bissett,  and  assumed  to  be  paid  by  Tay- 

_  lor,  and  a  balance  of  between  800  and  g900,  to  be  paid  in 

3  ]>.  iVms.  300.  finishing  certain  houses  on  lots   included  in  the  mortgage. 
2  Jltk.  303.  Ibid.  «''-.•'.  .  i      ~~  l     c   ev  J 

39.  It  appears  that   Taylor,  about  the  20th  of  June,  assumed 

debts,  and  became  responsible  to  Bissett' s  creditors,  to  the- 
amount  of  about  £l,0G0,  besides  the  sum  advanced.  It 
further  appears,  that  Alexander  McGregor,  to  whom  the 
mortgage  was  assigned  by  Taylor,  as  a  consideration  lor 
that  assignment,  refunded  money  to  Taylor,  which  he  ad- 
vanced to  Bissett,  and  also,  for  the  purpose  of  securing  a 
small  demand  he  had  against  Bissett  in  his  own  right,  and 
another,  as  administrator  of  one  Cunningham,  and  also,  in 
consideration  of  his  becoming  responsible  to  sundry  persons, 
for  claims  which  they  had  against  Bissett.  For  the  per- 
formance of  the  agreement  thus  made  by  McGregor,  he  ex- 
ecuted his  bond  to  Taylor*  and  he  offered  to  Bissett  to  gua- 
ranty its  fulfilment.  Though  the  business  was  transacted 
loosely  between  Bissett  and  Taylor,  it  appears  to  me,  there 
exists  no  pretence  of  fraud  ;  and  as  to  the  validity  of  such 
consideration,  I  have  as  little  doubt.  Under  these  circum- 
stances, the  mortgage  originally  given  to  Taylor,  was  as- 
signed to  Grant.  There  is  nothing  tending  to  show  that 
Grant  did  not  advance  the  full  amount  of  the  consideration, 
if  the  answer  of  McGregor  be  not  evidence,  and  that  it  is  not, 
I  have  before  said.  I  am  of  opinion,  that  the  decree  be 
reversed ;  that  after  applying  the  proceeds  of  the  one  lot, 
included  in  the  mortgage  to  Taylor  and  not  in  the  others,  to- 
wards the  satisfaction  of  the  mortgage  held  by  Grant,  the 
proceeds  of  the  sale  of  the  three  lots,  after  satisfying  the 
principal  and  interest  due  on  the  mortgage  to  Onderdonh, 
and  held  by  the  bank,  be  applied  to  the  satisfaction  of  the 
principal  and  interest  of  the  mortgage  held  by  Grant*  con- 


STATE  OF  NEW-YORK. 


121 


sidering  the  same  as  a  valid  security  for  the  entire  sum  men- 
tioned therein,  and  secured  thereby. 

#The  other  judges  and  residue  of  the  court  concurring, 
the  decree  was  unanimously  reversed.  Lewis,  C.  J.  how- 
ever, observed,  that  he  thought  the  mere  registering  a  mort- 
gage was  notice  to  subsequent  encumbrances. 


ALBANY, 
1804. 


J.  Grant  and 

others 

v. 

U.  S.  Bank. 

J.  Graut 

v. 

J.  Bissctt  and 

others. 


*    12a 


Marshall  and  William  Jenkins,  Appellants, 
And  Catherine  De  Groot,  adminis-") 
tratrix  of  Peter  De  Groot,  5 

THIS  was  an  appeal  from  chancery,  in  which  the  facts  If  ^^JJj^JjJJ 

appeared  to  be  these  :  Barnes  Goslin,  iun.  John  Goslin,  and  promissory  note 

r  ....  .  c       „     ,,    die  solvent,  and 

Peter  De  Groot,  made  their  joint  promissory  note  ior  133/.  t|ie  two   survi- 
1s.  2d.  payable  to  the  appellants  four  months  afterdate.    Pe-  ™'n^  equity  will 
ter  De  Groot  died  intestate.     The  appellants  prosecuted  the  Jjjjj  theweta 
surviving  makers  of  the  note  to  judgment,  issued  into  the  of  the  deceased, 
county  where  they  resided  a.  fi.fa.  which  was  returned  nulla 
bona,  and  they  have  since  become  insolvent,  but  the   re- 
spondent has  sufficient  assets  from  the  intestate  to  satisfy 
the  debt.     The  bill  prayed   that  the  respondent  might  be 
compelled  to   pay  the  demand,  but  on  a  general  demurrer 
the  Chancellor  was  pleased  to  dismiss  the  bill  with  costs, 
and  thus  assigned  his  reasons  : 

Mr.  President — From  the  authorities  cited  on  the  argu- 
ment, it  abundantly  appears,  that  courts  of  equity  are  not 
favourable  to  the  common  law  doctrine  of  survivorship  in 
cases  of  this  kind,  and  that  they  have  shown  a  disposition 
to  avail  themselves  of  circumstances  to  avoid  its  effects. 
Thus  the  words  of  a  condition  of  a  joint  bond  have  been  re- 
sorted to,  for  the  purpose  of  eluding  the  operation  of  this 
strict  rule  of  law.  The  application  of  the  money  borrowed 
to  the  concerns  of  a  joint  trade,  and  the  obligor's  drawing 


122  CASES  IN  ERROR  IN  THE 

Albany,      the  bond  himself  jointly,  have  been  admitted  as  circura* 
^  *      ,    stances  to  relax  the  operation  of  that  rule  ;  but  none  of  the 

Marshall  and  cases  go  the  length  of  deciding  that,  devested  of  circumstances, 
Wiiimm  Jenkins  the  obligat;on  0f  a  joint  contract  is  to  attach,  as  well  to  the 
^  DeGt*  representatives  of  the   dead,  as  to  the   survivor  of  the  con- 

tracting parties.  This  case  presents  the  naked  facts  of  a 
joint  debt  and  survivorship  ;  and,  I  think,  must  be  deter- 
mined on  the  rule  which  obtains  at  law,  and  if  so,  the  bill 
cannot  be  sustained.  In  giving  this  opinion,  I  regret  that 
*  123  the  rule  is  so  well  established,  as  to  *oblige  me  to  conform  to 

it.  The  inclination  of  my  mind  was  to  afford  relief,  if  I 
could  discover  any  principles  which  would  bear  me  out  in 
it ;  but,  thinking  as  I  do,  respecting  the  legal  principles  go- 
verning this  case,  I  dismissed  the  bill  with  costs. 

{£J°  The  respondent  not  appearing  to  argue  the  cause,  it 
was  heard  ex  parte. 

Per  Curiam  delivered  by  Thompson,  J.  The  facts  stated 
in  the  bill  are  admitted  by  the  demurrer  to  be  true.  The 
only  question,  therefore  presented  to  the  court,  is  whether 
where  three  persons  make  a  promissory  note,  one  dies  in- 
testate, but  solvent,  and  the  two  survivors  become  insol- 
vent, the  estate  of  the  deceased  can  in  equity  be  charged  with 
the  payment  of  the  note  ?  I  have  not  been  able  to  discover 
anv  principles  of  justice  on  which  it  can  be  exonerated.  It 
is  a  rule  applicable  to  proceedings  in  courts  of  law,  that  where 
two  are  jointly  bound,  and  one  dies,  the  survivor  must  be 
prosecuted,  and  an  action  cannot  be  maintained  against  the 
representatives  of  the  deceased.  This,  however,  is  a  rule 
controlling  the  remedy,  and  not  determining  the  right. 
Courts  of  equity  daily  give  relief  where  the  remedy  at  lav 
is  extinguished.  The  three  makers  of  this  note,  as  to  this 
transaction,  are  considered  in  the  light  of  partners,  and  the 
consideration  received  by  them  was  for  the  mutual  benefit 
of  them  all ;  and  although  this  consideration,  whatever  it 
might  be,  may  survive,  unless  severed  during  the  life-time 
3 


C.  De  Groot. 


STATE  OF  NEW-YORK.  123 

of  the  intestate,  yet  the  survivors  are  considered,  in  equity,      ALBANY, 
as  the  trustees  for  the  representatives  of  the  deceased,  for  his    \  _^°^\     / 
proportion.     Rights  claimed  by,  and  injuries  arising  from,    Marshall  and 

...  -.  William  Jenkins 

survivorship,  are  not  viewed  in  a  very  favourable  aspect, 
either  at  law  or  in  equity.  I  have  looked  into  the  cases  re- 
ferred to  by  the  appellants'  counsel,  which  I  think  fully 
establish  and  warrant  both  the  right  and  practice  of  courts 
of  equity,  giving  relief  in  cases  of  this  description.  The 
survivors  are  insolvent.  The  deceased  left  assets  sufficient 
to  pay  this  and  other  just  demands  against  his  estate.  The 
appellants  are  without  remedy  at  law,  and  I  see  no  reason 
why  equity  should  not  give  relief.  I  am,  therefore,  of  opi- 
nion, that  the  decree  of  his  honour  the  Chancellor  ought  to 
be  reversed. 


INDEX 


OF  THE  PRINCIPAL  MATTERS. 


N.  B.  The  Numerals  refer  to  the  page  in  the  Introduction. 


Abandonment. 

See  Insurance,  1. 

Account. 

See  Executor,  1. 

Acts  of  Congress  construed  and  ex- 
pounded. 

1.  An  Act  to  suspend  the  commercial  inter- 
course between  the  United  States  and 
France,  and  the  dependencies  thereof,      43 

2.  An  Act  further  to  suspend  the  commercial 
intercourse  between  tlie  United  Slates  and 
France,  and  the  dependencies  thereof,      43 

Acts  of  the  Legislature  construed 
and  expounded. 

1.  Act  concerning  Mortgages,  1 

2.  Act  concerning  Judgments  and  Execu- 
tions, 47 

3,.  Act  to  establish  a  Turnpike  Corporation, 
for  improving  the  road  from  New-Lebanon 
to  the  city  of  Hudson,  86 

Action. 

See  Turnpike  Acts,  1 . 

Affidavit. 

See  Practice,  2. 

Articles. 
S*e  Practice,  I. 


B 

Bill  to  Account. 

See  Executor,  1. 

Bill  of  Discovery. 

See  Practice,  2. 

Bill  of  Review. 

See  Practice,  1. 

Bond. 

See  Mortgage,  2. 

c 

Capture. 

See  Insurance,  1  • 

Chancery. 

See  Practice,  1. 

Concealment, 

See  Insurance,  4. 

Contraband  Trade. 

See  Insurance,  5. 

Corporations. 

See  Turnpike  Acts,  1. 

D 

Demurrer. 

See  Practice,  2. 


126 


INDEX. 


Distress. 

See  Insurance,  2. 


Foreign  Sentences. 


See  Insurance,  5'. 


Emigration. 
See  Insurance,  4. 

Equity. 

Sec  Promissory  Note,  1. 

Equity  of  Redemption. 

See   Mortgage,   I. 

J.  T$v  the  words  of  our  lav/,  an  "Equity  of  Re- 
demption is  saleable  by  a  sheiifF  under  a. 
ji.fa.     Waters  and  others  \.  Stewart,        47 

Evidence. 

See  Insurance,  5.     Practice,  1. 

l.Farol  evidence  of  the  contents  of  a  letter  of 
attorney  may  be  adduced,  if  die  person  to 
■whom  it  was  given  prove  it  to  have  been 
lost.    JAvingston  v.  Itogers.  xxvii 

Execution. 

See  Equity  of  Redemption. 

Executor. 

I.  If  an  executor  or  trustee  he  robbed  of  mo- 
ney, it  is  a  good  answer  to  a  hill  for  an  ac- 
count. If  the  executor  or  trustee  be  dead, 
his  personal  representative  may  avail  himself 
of  it,  though  it  want  the  corroboration  of  the 
Oath  of  him  wh'>m  he  represents.  Fnrman 
v.  Coe  and  others,  96 


Fieri  Facias. 

See  Equity  of  Redemption,  1. 

Foreclosure. 

Sec  Mortgage,  1 . 


Forfeiture. 

See  Turnpike  Acts,  1. 


Illegal  Voyage. 

See  Insurance,  2. 

Illicit  Trade. 

See  Insurance,  5. 


Injunction. 

See  Practice,  2. 

Insurance. 

1.  On  a  capture,  restoration,  and  abandon- 
ment, the  fact  of  restoration,  though  un- 
known at  the  time  of  abandonment,  takes 
away  the  right  to  abandon  and  claim  for  a 
total  loss.  Under  such  circumstances,  the 
assured  is  entitled  to  recover  only  according 
to  the  final  event.  Church  v.  liedient  and 
others,  21 

2.  A  passport  granted  by  any  particular  go- 
vernment, to  protect  against  its  own  crui- 
sers, is  not  a  sailing  under  the  protection  of 
the  flag  of  that  government,  so  as  to  stamp 
a  national  character,  and  be  a  violation  of 
neutrality  :  nor  is  a  voyage  illegal,  because 
a  vessel  lias  been  driven  by  distress  into  a 
French  port,  where  a  part  of  her  cargo  was 
taken  by  the  officers  of  the  government, 
and  she  prevented  from  taking  away  her 
original  lading  ;  for  she  may,  under  such 
circumstances,  without  incurring  the  penal- 
ty of  the  Act  forbidding  ail  intercourse  with 
the  dependencies  of  France,  purchase  and 
load  with  the  produce  of  the  country.  Hal- 
lett  &  Dcrwne  v.  Jenks  and  others,  43 

3.  A  mere  sailing  to  a  port  understood  to  be 
blockaded,  is  not  a  breach  of  neutrality,  so 
as  to  aft'eet  a  policy  of  insurance.  Vos  & 
Graves  v.  Unit.  Ins.  Company,  vii 

4.  If  a  belligerent  emigrate  to  a  neutral  toun, 
try,  flagrante  bello,  and  be  there  naturali- 
zed,'a  warranty  of  neutrality  is  supported 
by  such  naturalization  ;  nor  need   the   a? 


INDEX. 


m 


Bured  disclose  to  the  underwriter  the  period 
of  his  naturalization.  Dnguet  v.  Rhine- 
lander,  xxv 
5.  The  trade  of  a  domiciled  alien,  carried  on 
from  the  United  States  with  the  enemies  of 
his  mother  country,  is  protected  tinder  the 
■warranty  against  illicit  trade.  To  constitute 
a  breach  of  that  warranty,  the  seizure  must 
be  for  actual,  illicit,  prohibited,  or  contra- 
band trade.  A  seizure  and  condemnation, 
under  pretext  of  such  a  trade,  is  not  suffi- 
cient, if  the  trade  be  not  in  tact  one  or  the 
other.  A  sentence,  in  a  foreign  court  of  ad- 
miralty, is  not  even  prima  facie  evidence  of 
any  fact,  if  there  appear  in  it  enough  to  re- 
but such  a  presumption.  Johnston  and  Weir 
v.  Ludlov.-,                                               xxix 


L 

Limitation. 


See  Mortgage,  1 


M 

Mortgage,  Mortgagor,  and  Mort- 
gagee. 

.  A  power  of  sale  in  default  of  payment,  con- 
tained in  a  mortgage  deed,  is  a  power  cou- 
pled with  an  interest,  and  does  not  die  with 
the  mortgagor.  If  such  power  be  recorded 
in  the  hook  for  recording  mortgages,  it  is  a 
compliance  with  the  act.  A  sale  under  such 
power  is  a  species  of  foreclosure,  and  under 
it  a  mortgagee  himself  may  make  a  bona 
Jide  purchase.  After  a  lapse  of  sixteen  years, 
from  the  time  of  such  sale,  known  to  the 
mortgagor  or  his  heirs,  who  during  that 
time  remain  passive,  a  redemption  w  ill  not 
be  allowed.  Bergen  and  another  v.  Ben- 
nett, I 
2.  If  one  of  many  joint  mortgagors  assign  his 
interest  to  a  third  person,  who  is  accepted 
by  the  mortgagee  in  substitution  of  the  as- 
signor, and  an  endorsement  he  made  on  the 
mortgage  and  bond,  that  such  third  person 
is  "  accepted  in  lieu  of  the  share  which  the 
assignor  holds  in  the  bond,  and  is  looked  to 
for  his  proportion  accordingly,"  the  land 
will  be  exonerated  from  the  portion  of  the 
assignor,  on  his  assignee  giving  bonds  for 
the  balance  of  an  account  between  the  mort- 
gagee and  the  assignee,  in  which  the  assignee 
i:>  debited  for  the  proportion,  provided  it  ap- 
pear that  those  bonds  have  been  satisfied, 
notwithstanding  such  satisfaction  be  under  a 
settlement  made  after  cancelling  the  original 
bonds  of  the   assignee,  by  giving  other  se- 


curity, and  at  the  time  of  si'iving  the  same, 
the  assignee  have  notice  of  an  assignment  of 
the  bond  and  mortgage,  made  between  the 
first  and  second  settlement.  Leake  and 
Swarhvout  V.  Hootsey  and  others,  73 

3.  No  tacking  between  registered  mortgages. 
They  must  be  paid  off  according  to  the  dates 
of  their  registry.    Grant  v.  Bissett,  112 

N 
National  Character  of  a  Vessel. 

See  Insurance,  2. 

Neutrality. 

See  Insurance,  2.  4. 

New  discovered  Evidence. 

See  Practice,  1. 

Notice. 

See   Mortgage,  2. 

Nudum  Pactum. 

See  Turnpike  Acts,  1. 
P 

Passport. 

See  Insurance,  2. 

Payment. 

See  Mortgage,  2. 

Power. 

See  Mortgage,  I. 

Practice. 

l.On  a  discovery  of  new  evidence,  after  a  de- 
cree in  chancery,  the  application  ought  to 
be  for  a  bill  of  review,  and  not  for  a  rehear- 
ing When  the  competence  of  witnesses  ex- 
amined is  the  cause  of  application,  it  ought 
to  !  •  by  bili  of  review,  when  their  credit,  by 
aiiiid'.s.     Ftvm'.in  v.  Coc  and  others,         ¥6 

a 


128 


INDEX. 


2.  Where  there  are  several  complainants  to  a 
bill  praying  an  injunction,  an  affidavit  by 
one  alone,  showing  probable  cause  for  equit- 
able interposition,  is  sufficient,  and  a  de- 
murrer that  all  have  not  joined  is  bad.  A 
demurrer  to  a  bill,  because  seeking  a  disco- 
very of  that  which  would  subject  to  the 
penalties  of  the  act,  against  buying  pretend- 
ed titles,  is  bad,  unless  it  appear  that  the 
answer  would  show  a  scienter  of  the  seller's 
being  out  of  possession.  If  a  plaintiff  be 
properly  before  the  court  of  chancery  for  a 
discovery,  he  may  pray  relief,  and  a  de- 
murrer to  the  whole  bill  on  that  account  is 
bad.  Le  Roy  and  others  v.  Servis  and 
others.  iii 

Promissory  Note. 

If  one  of  three  joint  makers  of  a  promissory 
note  die  solvent,  and  the  two  survivors  be 
insolvent,  equity  will  order  payment  out  of 
the  assets  of  the  deceased.  Jenkins  v.  De 
Groot,  122 

Public  Acts. 
See  Turnpike  Acts,  1. 

Purchase. 

See  Mortgage,  1. 

R 

Redemption. 
See  Mortgage,  1. 

Registry  and  Registering. 

See  Mortgage,  3. 

Rehearing. 
See  Practice,  1. 

Relief. 
See  Practice,  2. 

Review. 
See  Practice,  1. 

Restoration. 
See  Insurance,  1  ■ 


Robbery. 
See  Executor,  1 . 


Sale. 


Satisfaction. 

See  Mortgage,  2. 

Sheriff. 

See  Equity  of  Redemption,  1. 

Stock  in  Companies. 

See  Turnpike  Acts,  1. 

Substitution. 

See  Mortgage,  2. 

Survivorship. 

See  Promissory  Note,  I. 

T 

Tacking. 
See  Mortgage,  3. 

Trade. 

See  Insurance,  5. 

Trustee. 

See  Executor,  I. 

Turnpike  Acts. 

1.  A  Turnpike  Act,  incorporating  a  company 
with  a  clause  vesting  the  road  on  a  certain 
event  in  the  people,  is  a  public  act  ut  semb. 
The  mere  subscribing  to  stock  in  a  turnpike 
company,  where  a  part  of  the  amount  of 
each  share  is  ordered  to  be  paid  at  that  time, 
gives  no  interest  in  the  stock,  if  the  money 
be  not  paid,  and  the  company  cannot  bring 
an  action  for  the  amount,  as  it  is  nudum 
pactum.  A  clause  of  forfeiture  of  shares 
subscribed,  takes  away  the  right  of  suing  for 
them,  or  for  money  ordered  to  be  paid  on 
them.  Jenkins  v.  Union  Turnpike  Com- 
pany, 86 

w 


Warranty. 

See  Insurance,  4,  5. 

Witness. 


See  Mortgage,  1. 

2 


Equity  of  Redemption,  1 


Sec  Practice,  1. 


CASES 

# 
ARGUED  AND  DETERMINED 

THE  COURT 

FOR 


THE  TRIAL  OF  IMPEACHMENTS 


AND 


CORRECTION  OF  ERRORS 


IN 


THE  STATE  OF  NEW-YORK, 

LY  FEBRUARY,  1805. 


— a%WjYv*- 


TO  WHICH  ARE  ADDED 


SOME  OLD  DECISIONS  BOTH  IN  THAT  AND  THE 
SUPREME  COURT. 


VOL.  II. 

JYEW-YQRK: 
Prated  and  Published  by  I.  Riley. 

1810. 


DISTRICT  OF  NEW-YORK,  n. 

BE  IT  REMEMBERED,  That  on  the  twelfth  day  of  August  in  the 
thirty-secoiuj  year  of  the  Independence  of  the  United  States  of  Ame- 
rica, Isaac  Riley,  of  the  said  district,  hath  deposited  in  this  office  the 
title  of  a  book,  the  right  whereof  he  claims  as  proprietor,  in  the  words 
and  figures  following,  to  wit : 

"Cases  argued  and  determined  in  the  Court  for  the  Trial  of  Impeachments 
and  Correction  of  Errors  in  (he  State  of  New-York.— In  February,  1805. — 
To  which  are  added,  some  old  Decisions  both  in  that  and  the  Supreme  Court. 
Vol.  11." 

In  conformity  to  the  act  of  the  Congress  of  the  United  States,  en- 
titled, "  An  act  for  the  encouragement  of  learning,  by  securing  the  copies 
*'  of  maps,  charts  and  books,  to  the  authors  and  proprietors  of  such  copies, 
"  during  the  times  therein  mentioned  ;"'  and  also  to  an  act,  entitled,  "  An 
"  act,  supplementary  to  an  act,  entitled,  an  act  for  the  encouragement  of 
"  learning,  by  securing  the  copies  of  maps,  charts  and  books,  to  the  authors 
"  and  proprietors  of  such  copies,  during  the  times  therein  mentioned,  and 
<c  extending  the  benefits  thereof  to  the  arts  of  designing,  engraving  and 
*'  etching  historical  and  other  prints." 

EDWARD  DUNSCOMR. 

Clerk  of  the  District  of  New-York. 


TABLE  OF  CASES. 


Page  Page 

B  Le  Roy  and  others  v.  Lewis 

BETTS  v.  TURNER,             305         and  others,  175 

Bloodgood  v.  Zeily,                    124  Lewis  v.  Burr,  195 

Brown  and  others  v.  Robinson  Lodge  v.  Phelps,  321 

and  Hartshorne,                       341  Ludlow   and   Ludlow  v.    Si- 
Bush  v.  Livingston  and  Town-                 mond,  1 
send,                                            66  Ludlow  v.  Dale,  348 

C  M 

Cortelyou  v.  Lansing,  200     Munro  and  others  v.  Alaire,      183 

Covenhoven   t>«    Seaman  and 

others,  322  N 

Cuyler   and  others  v.   Bradt  Newkerk  and  wife  v.  Willett,    296 

and  others,  326 

.  P 
F  Peoples.  Sessions  of  Chenango,  319 

Frost  v.  Carter,  311 

S 
H  Smith  v.  Williams,  110 

Hallett  and  Bowne  v.  Jenks,         86     Smith  v.  Bell  and  others,  153 

Smith  v.  Steinbach,  158 

J  Smith  v.  Hammond,  337 

Jackson,  ex  dem.  Loan-officers 

of  Rensselaer,  v.  Bull,  301  T 

Jackson,  ex  dem.  Van  Alen,  t>.  Taylor  v.  Delancey,  143 

Rogers,  314 

Johnson  v.  Bloodgood,  303  V 

Judah  v.  Randall,  324     Vandenheuvel  v.  The  United 

Insurance  Company,  217 

L 
Laight  and  others  v.  Morgan  W 

and  others,  344    Wetmore  v.  White  and  White,    87 


ADVERTISEMENT. 


MO  ST  of  the  decisions  which  follow  the  adjudica- 
tions of  1805,  are  cases  often  cited  at  the  bar,  and  as 
often  denied  or  disputed.  To  make  known  what  they 
are,  they  are  now  published. 


CASES 

ARGUED  AND  DETERMINED 

IN    THE 

COURT  FOR  THE  TRIAL  OF  IMPEACHMENTS 

AND 

CORRECTION  OF  ERRORS 

IN    THE 

STATE  OF  NEW-YORK: 

FEBRUARY  TERM,  1S05. 

Daniel  and  Gillian  Ludlow,  Appellants,  Albany 

against  W^S 

Lewis  Simond,  Respondent.  D- &  G*  Ludlow 

Siinond. 


ON  appeal  from  a  decision  of  the  Chancellor,  dismissing  if  a  surety  en- 

the  appellants*  bill  with  costs.  gg   £.  ™£ 

The  appellants, on  the  11th  of  March,  1799,  entered  into  j^JJ^  ^sin<| 
an  agreement  with  Anpier  Marie  Leremboure,  and  the  re-  Soods  at  a  S'Ten 

°  t  place,    and  con- 

spondent,  by  which  Leremboure  was  to  load  on  board  one  signed    to    the 

.  ,  _      ,  ,   rr  correspondent  of 

or  more  vessels,  such  a  quantity  or  tobacco  and  Havanna  su-  the    person   to 

gars,  the  former  at  10  and  a  half  and  11  cents  per  lb.  the  rity  is  given,  who 

latter  at  15  dollars  75  cents  per  cwt.  for  the  brown,  and  19  control  thc'S 

dollars  for  the   white,  as  would  form  a  capital  of  about  v«nture,a  sale  by 

*  the  consignee  at 

4O,000  dollars,  after  deducting  the  drawback.     The  goods  another  place  re- 

,  leases  the  surety 

thus  shipped,  to  be   consigned,  under  a  bill  of  lading,  by  Though  relief  at 

_  _.  _    .,  ,         i       rj  /i        i    •  'aw  maJ  be  had, 

Daniel  Ludlow  fcr  Co.  to  Messrs.  Buildemaker  cr  Co.  their  yet  if  it  be  doubt- 
correspondents  at  Hamburgh,  to  be  sold  for  the  ^account  and  r"  taintfle^biiL1 
risk  of  Leremboure.     Ludlorv  &?  Co.  to  furnish  Leremboure  *  2 
with  their  notes,  to  order,  for  the  above  amount  of  40,000 


2  CASES  IN  ERROR  IN  THE 

ALBANY,       dollars,  payable,  one  half  at  four,  and  the  other  half  at  six 
i*^'18!^,    months  ;  each  half  to  be  divided  in  several  parts,  to  be  de- 

D.  &  G.  Ludlow  livered  so  as  to  complete  each  particular  shipment,  and  the 
Simond.        amount  to  be  fully  insured  by  one  of  the  insurance  compa- 

1 — nies,  or  other  respectable  underwriters,  of  the  city  of  New- 

York.  For  this,  Ludlow  £s?  Co.  to  be  allowed  a  commission 
of  2  1-2  per  cent,  on  the  invoices  of  the  goods  put  on 
board.  To  secure  to  Ludlow  £s?  Co.  the  repayment  of  the 
40,000  dollars,  together  with  the  above  commission,  Lerem- 
boure  to  assign  the  policies  covering  the  shipments,  and  in 
case  of  the  capture  or  loss  of  any,  Ludlow  &  Co.  to  receive 
from  the  underwriters  the  amount  of  their  subscriptions. 
Should  this  mode  of  reimbursement  not  take  place,  Ludlow 
&  Co.  were  authorized  to  draw  at  60  days  sight  on  London, 
twenty  days  before  their  notes  respectively  became  due,  at 
the  then  current  exchange,  and  to  order  the  necessary  re- 
mittances to  be  made  by  Buildemaker  &?  Co.  to  their  friends 
in  London,  or  to  whom  they  may  value  on,  to  meet  their 
drafts ;  the  remittances  to  be  made  at  the  risk  of  Lerem- 
boure,  both  as  to  the  validity  of  the  bills  and  solvability  of 
the  house  in  London,  to  whom  the  same  might  be  made. 
Ludlow  &?  Co.  to  be  allowed  a  further  commision  of  1  1-4 
per  cent,  on  the  amount  of  all  bills  they  might  draw.  If 
the  proceeds  of  the  sales  at  Hamburgh,  so  disposed  of,  should 
not  prove  sufficient  to  reimburse  Ludlow  &?  Co.  the  amount 
of  their  several   notes,  together  with  interest  on  their  ad- 

*  3  vances,  commissions,  and  all  other  ^charges,  Leremboure  to 

make  good  the  deficiency,  so  soon  as  ascertained,  by  giving 
his  note  to  Ludlow  fc?  Co.  payable  at  60  days,  the  same  to 
be  endorsed  by  Simond  &  Co.  who  thereby  agreed  thereto, 
Ludlow  fc?  Co.  obligating  themselves,  if  the  proceeds  of  the 
several  shipments  exceeded  the  amount  due  them,  to  pay 
the  difference  when  in  cash ;  the  parties  binding  themselves 
to  each  other  in  the  sum  of  100,000  dollars  for  the  due 
performance  of  the  agreement,  which  was  executed  in  the 
names  of  Daniel  Ludlow  &  Co.  (l.  s.) 

A.  M.  Lehemboure,       (l.  s.) 
L.  Simond  &  Co.  (l.  s.) 


STATE  OF  NEW- YORK.  3 

In  pursuance  of  the  above  contract,  Ludlow  &r  Co.  on  the      Albany, 
day  of  the  agreement,  furnished  Lerembonre  with  three  notes    \^J»^  l^i 
for  3,000  dollars,  two  for  2,500  dollars,  three  for  2,000  dol-  D.  &  G.  Ludlow 
lars,  payable   in  six   months,  and  one  for  2,697  dollars  99        T«ir«t 
cents,  at  four  months  ;  Lerembonre,  at   the  same  time,  as-  ■ 

signing  to  them  policies  of  assurance  to  the  amount  of 
40,000  dollars  on  the  cargoes  of  two  ships  loaded  by  him 
with  sugar  and  tobacco,  marked  D.  L.  which  were,  by 
Ludloiv  £-f  Co.  consigned  and  ordered  to  be  sold  according 
to  the  terms  of  their  engagement.  On  the  6lh  of  April  fol- 
lowing, Ludloiv  &?  Co.  gave  Lerembonre  other  notes,  making 
up  the  sum  of  36,431  dollars  88  cents. 

The  cargoes  thus  shipped,  and  consigned  to  Buildemaker 
'<£  Co.  at  Hamburgh,  arrived  safe,  but  previous  to  their 
reaching  that  port,  several  great  failures  had  taken  place, 
which  induced  a  very  considerable  change  in  the  market. 
In  consequence  of  this,  * Buildemaker  &  Co.  without  any  di-  *  4 

rection  from  the  appellants,  sent  the  tobacco  to  Rotterdam, 
addressed  to  their  own  correspondent,  Roquelte  Buildemaker  y 
who,  in  July,  1800,  sold  it  for  about  14,126  dollars  85 
cents  net,  which  he  paid  over  to  Ludlow  &  Co.  In  the  Oc- 
tober following,  the  appellants,  having  ascertained  the  ba- 
lance due,  presented  the  accounts  of  the  sales  of  the  tobacco 
to  Leremboure,  who  acknowledged  they  were  right,  but,  as 
he  was  then  insolvent  and  confined  for  debt,  declined  giving 
his  note  for  the  deficiency,  though  the  appellants  demanded 
it.  Sixty-three  days  after  this  refusal,  Ludlow  £s?  Co.  called 
on  the  respondent,  and  requested  him  to  pay  the  amount  of 
the  loss,  which  he  refusing  to  do,  they  filed  their  bill  against 
him  and  the  respondent,  setting  forth  the  above  facts,  charg- 
ing a  combination  to  refuse  giving  the  note,  p raving  that  the 
accounts  between  them  and  Lerembonre,  arising  under  die 
agreement,  might  be  taken,  that  Lerembonre  and  the  respond- 
ent might  be  decreed  to  make  good  the  deficiency  or  ba- 
lance, and  that  they  themselves  might  be  decreed  such  other 
relief  as  their  case  mi^ht  inquire. 

b  b 


*5 


CASES  IN  ERROR  IN  THE 

ALBANY,  Simond  put  in  his  answer,  stating,  that  without  having  any 

interest  in  the  contract,  or  expecting  to  receive  any  benefit 


D.  &  G.  Ludlow  from  it,  he  consented  to  become  surety  for  Leremboure,  and 
Simond.        did,  with  him,  execute  the  agreement  in  the  name  of  Lexvis 

———————    Simond  £i?  Co.  though,  not  having  any  partner,  he  himself 

was  solely  bound  by  the  signature.  The  answer,  also,  ad- 
mitted the  facts  as  detailed,  except  as  to  the  effect  of  the 
failures  at  Hamburghy  of  which  it  stated  his  ignorance,  but 
averred,  that  the  reshipment  of  the  tobacco  for  Rotterdam, 
and  sale  of  it  there,  was  without  the  consent  *of  Leremboure 
or  himself;  in  consequence  of  which,  Leremboure  refused 
to  give  the  note  mentioned  in  the  agreement,  and  he  to  pay 
or  make  good  the  deficiency,  considering  themselves  re- 
leased from  all  obligation  to  do  the  one  or  the  other. 

To  establish  the  price  of  tobacco  at  Hamburgh,  in  the 
summer  of  1799,  /.  L.  Steinbach  and  John  H.  Schmidt  were 
examined,  but  the  first  could  prove  nothing  as  to  the  point, 
and  the  latter,  only  that  Virginia  tobacco.,  at  Hamburgh, 
was,  from  the  month  of  October,  1799,  to  the  end  of  the 
year,  at  3s.  9d.  to  As.  Hamburgh  currency,  per  lb.  that 
Maryland  was  higher,  and  that  the  price  continued  the 
same  in  1800,  but  what  it  was  in  the  summer  of  1799  he 
could  not  tell. 

To  prove  the  execution  of  the  agreement,  William  M.  Sc- 
ion and  Martin  Hoffman  were  examined,  who  deposed, 
that  they  saw  "  Daniel  Ludloxv  and  Gulian  Ludlow,  the  com- 
plainants, and  Angler  Marie  Leremboure  and  Lezvis  Simond, 
execute  the  contract." 

The  cause  being  heard,  on  the  above  admissions  and  tes- 
timony, his  honour  the  Chancellor  pronounced  the  decree, 
now  appealed  from,  and  thus  assigned  his  reasons  : 


Mr.  President — On  this  case  several  questions  have  been 
made,  but  a  preliminary  consideration  is — 

Whether  the  bill  can  be  sustained  in  this  court  ? 

The  informality  in  the  execution  of  the  contract,  might, 
of  itself,  be  sufficient  to  repel  the  allegation,  that  the  matter 


STATE  OF  NEW-YORK.  5 

in  the  bill   is  not  cognisable   here,  as  it  was  determined      ALBANY 
while  I  was  in  the  supreme  court,f  that  an  execution  of  a     ^^  IS05- 
sealed  instrument  by  one  partner,  *in  the  name  of  the  firm,  D.  &  g  Ludlow 
was  invalid,  and  it  was  for  that  reason  rejected  as  evidence.        Simond. 

But   in   this   case   it   is    not  necessary,  nor  do  I  mean  to    ' ~— 

ground  my  opinion  on  that  point,  tor  there  is  another  head  July  term,  1791. 
of  equity  which  must  sustain  the  bill.  " 

The  defendant,  Leremboure,  has  refused  to  give  his  note, 
and  it  does  not  appear  to  me  that  any  form  of  pleading  at 
law,  would  enable  the  complainants  to  allege  the  not  endors- 
ing a  note  xvltich  never  xvas  in  existence,  as  a  breach  of  con- 
tract by  the  defendant  Simond,  or  as  cause  of  action  in  any 
other  shape  ;  the  making  of  the  note  would  there,  as  to  the 
defendant  Simond,  be  considered  in  the  nature  of  a  con- 
dition precedent ;  and  if  it  could  be  made  out  in  proof,  that 
the  not  making  it  was  the  effect  of  fraud  or  collusion,  it 
would,  perhaps,  not  better  the  condition  of  the  complain- 
ants, for  it  would  then  become  one  of  the  peculiar  objects 
of  the  jurisdiction  of  this  court,  but  there  certainly  could 
be  no  valid  reason  for  coming  here  to  account,  as  the  'ac- 
counting in  this  case  can  only  be  required  from  the  com 
plainants. 

I,  therefore,  proceed  to  consider  the  questions  applying 
to  the  merits  ;  these  are — 

1st.  Whether  the  agreement  was  a  valid  one,  as  the  com- 
plainants are  described  as  Daniel  Ludlow  &  Co.  and  have 
executed  it  with  one  seal  only  ? 

2d.  Whether  the  house  of  Buildemaker  £5?  Co.  were  the 
joint  agents  of  both,  or  the  agents  of  either  exclusively? 

3d.  Whether  the  defendant  Simond  was  an  original  par- 
ty in  interest  in  the  contract,  or  only  introduced  as  surety  ? 
and  if  as  surety, 

*4th.  Whether  the  deviation  from  the  terms  of  the  con-  *  7 

tract  in  its  execution,  has  not  discharged  him  ?  and, 

5th.  It  has  been  insisted,  that  as  the  defendant  Simond 
is  not  liable  at  law,  this  court  will  not  carry  his  respon-. 
sibility  beyond  it. 


CASES  IN  ERR011  IN  THE 

ALBANY*  As  to  the  first  question,  if  the  contract  was  invalid,  as  to 

the  complainants,  the  consideration  on  the  part  of  the  de- 


D.  be  6.  Luriiow  fendants  must  have  failed  also,  and  of  consequence  it  was 
Simonrt.         insisted  the  whole  transaction  was  nugatory. 
■■  " To  the  contract  appears  the  signature  of  "  Daniel  Lud- 
low &  Co."  collectively,  as  one   of  the  parties  ;  both  the 
complainants,  however,  were  present,  and   the  subscribing 
witnesses  depose,  that  both  executed  it. 

Whether  this  inference  was  drawn  from  the  erroneous 
opinion,  that  the  act  of  one  copartner  may  bind  the  other 
in  all  cases,  respecting  their  common  concerns,  whether  the 
act  is  with  or  rvithout  seal,  or  whether  they  both  actually 
and  formally  sealed  and  acknowledged  the  instrument  as 
their  act  and  deed,  cannot  be  determined  from  the  depo- 
sitions :  it  is  a  fact  proved  that  both  executed  it. 

The  signature  of  the  contracting  parties  is  in  the  ordi- 
nary and  regular  form  ;  but  it  is  not  an  essential  part  of  the 
execution:  the  sealing  and  delivery  are  of  its  essence,  and 
I  know  of  no  law  which  will  prevent  a  plurality  of  parties 
from  acknowledging  one  seal  affixed  to  an  instrument,  as 
the  seal  of  each  party  separately  ;  for  the  mere  recognition 
of  a  seal  does  not,  in  its  modern  use,  amount  to  an  exclu- 
sive appropriation,  so  as  to  prevent  the  other  parties  to  the 

*  8  instrument,  *from  using  it  as  their  own,  for  all  the  pur- 

poses of  giving  validity  to  the  deed,  to  which  it  is  affixed, 
as  their  act;  but  in  this  instance,  whether  the  paper  in 
question  is  considered  as  a  deed,  or  depending  upon  the 
principles  regulating  simple  contracts,  will  not  vary  its 
operation.  Before  it  assumed  die  shape  of  a  deed,  and  had 
the  formalities  attending  its  being  constituted  such  attach- 
ed to  it,  tiio  contract  had  received  a  definite  complexion. 
The  terms  had  been  arranged  and  precisely  ascertained  bv 
the  convention  of  the  parties,  and  it  would  emphatically  be 
entangling  justice  in  the  net  of  form  to  sustain  an  objection 
on  that  ground  here,  for  the  existence  and  terms  of  the 
contract  are  the  only  objects,  as  far  as  respects  this  point 
in  contest  between   the    parties ;  and  that  these  were  an- 


STATE  OF  NEW-YORK.  8 

thenticated  with  a  greater  degree  of   formality  than  the      ALBANY, 
strict  rules  of  law  require,  cannot  certainly  detract  from  the    *  '". 

evidence  of  its  existence.  D.  &  g.  Ludlow 

It  will  be  perceived,  that  I  do  not  rely  on  the  acts  of  the        simond. 

parties  in  its  execution,  which  might,  in  all  events,  have  a 

determining  effect  in  one  point  of  view.  That  I  do  not  now 
mean  to  pursue. 

As  to  the  second  question. 

To  determine  this,  it  may  be  necessary  to  examine  the 
general  scope  and  object  of  the  contract,  and  to  review  its 
different  details. 

The  leading  motives  of  the  defendant  Leremboure,  seem 
to  have  been,  to  avail  himself  of  the  agency  of  the  com- 
plainants, perhaps  as  a  protection  against  the  captures  of 
belligerents,  and  the  reduction  of  the  premium  of  insurance, 
and  certainly  of  their  credit,  to  give  him  an  earlier  com- 
mand of  the  funds,  expected  %o  a  rise  from  the  consign-  *  9 
ments  of  his  sugars  and  tobacco  to  Hamburgh,  and  on  the 
part  of  the  complainants,  the  receipt  of  the  commission 
stipulated  by  the  contract. 

The  contract  was  so  arranged,  as  to  afford  the  complainants 
every  reasonable  security  against  ultimate  loss,  and  much 
more  so  than  could  apply  to  ordinary  commercial  specula- 
tions, if  the  business  was  correctly  managed,  according  to 
the  directions  contained  in  the  contract. 

It  multiplied  the  guards  against  loss  by  reposing,  first,  on 
the  responsibility  of  Leremboure ;  secondly,  and  principal- 
ly, on  the  subject  consigned  ;  and  thirdly,  on  the  defendant 
Shnond,  whose  ability  to  respond  does  not  appear  to  be 
questioned. 

The  contract  stipulates,  that  Leremboure  shall  put  on 
board  one  or  more  vessels,  tobacco  and  sugars,  at  fixed 
prices,  to  the  amount  of  about  40,000  dollars ;  that  those 
goods  shall  be  consigned  under  bills  of  lading  of  the  com* 
plainants,  to  Buildemaker  £?  Co.  their  correspondents  at 
Hamburgh,  to  be  sold  for  the  account  and  risk  of  the  de- 
fendant Leremboure ;  that  he  shall  insure  them,  and  assign 


i  CASES  IN  ERROR  IN  THE 

ALBANY,      the  policies  of  insurance  to  the  complainants,  who  shall  re- 
ceive from  the   underwriters  the  amount    of  any   losses 


D.  k  G.  Ludlow  which  shall  be  applied  to  the  reimbursement  of  the  com- 
SimVond.         plainants. 

— — —  The  complainants  agree  to  furnish  their  notes  to  the  de- 
fendant Leremboure,  to  the  amount  of  the  several  ship- 
ments, fully  insured,  one  half  payable  in  four,  the  other 
half  in  six  months,  and  to  pay  any  surplus  which  may  re- 
main, after  they  have  been  satisfied,  to  Leremboure* 

*  10  *if  the  policies  did  not  afford  a  means  of  reimbursement, 

then  the  complainants  were  authorized  to  draw,  twenty 
days  before  their  notes  became  due,  at  the  then  current  ex- 
change, at  sixty  days  on  London,  and  to  order  the  necessary 
remittances  to  be  made  by  Buildemaker  &?  Co.  to  their  friends 
iu  London,  on  whom  they  might  value,  to  meet  their  drafts, 
for  which  the  complainants  were  to  receive  an  additional 
commission  of  one  and  one  quarter  per  cent,  on  the  amount 
of  such  drafts. 

If  the  proceeds  of  the  sales  at  Hamburgh  should  prove 
inadequate  to  reimburse  the  complainants,  the  defendant 
Leremboure  agreed  to  make  good  the  deficiency  as  soon  as 
ascertained,  by  giving  his  note  to  the  complainants,  payable 
at  sixty  days,  and  then  follows,  "  the  same  to  be  endorsed 
by  L.  Simond  £s?  Co.  who  hereby  agree  thereto." 

The  house  of  Buildemaker  £s?  Co.  are  described  as  the 
correspondents  of  the  complainants  at  Hamburgh  ;  the  com- 
plainants are  authorized  to  order  the  necessary  remittances 
to  be  made  by  that  house,  to  London  ;  they  were  to  consign 
the  tobacco  and  sugars,  which  were  particularly  valued, 
under  their  (the  complainants')  names,  to  the  same  house  ; 
the  policies  were  to  be  assigned  to  them  ;  Buildemaker  &f 
Co.  were  to  make  a  selection  of  a  house  in  London,  to  which 
the  remittance  was  to  be  made  by  them,  from  Hamburgh, 
though  that  remittance  was  to  be  made,  both  as  to  the 
validity  of  the  bills  and  solvability  of  the  house  in  London, 
at  the  risk  of  the  defendant  Leremboure. 


STATE  OF  NEW- YORK.  10 

All  these  are  strong  marks  of  a  determination  completely      ALBANY, 
to  devolve  the  control  of  the  subject  upon  *the  complain- 


ants, of  a  total  abandonment  of  the  right  of  interfering  in  D.  &  G.  Ludlo 
the  management  of  the  fund,  destined  to  secure  the  com-        Simond. 
plainants  against  the  responsibilities  they  might  incur,  until  ~"~ — ~~" ~ — 
its  disposition  should  have  been  effected ;  and  after  this  was 
consummated,  the  defendant  Leremboure  was  even  to  re- 
ceive the  surplus  from  the  hands  of  the  complainants,  and 
not  from  Buildemaker  &  Co.  to  whom  a  resort  must  of 
course  have  been  had,  if  they  were  the  joint  agents  of  the 
parties. 

The  description  of  Buildemaker  &?  Co.  as  correspondents 
of  the  complainants,  in  mercantile  language,  is  somewhat 
more  forcible  than  in  common  parlance  ;  it  indicates  persons 
with  whom  they  were  in  the  habit  of  doing  business,  ana 
in  this  instance  it  can  only  have  been  introduced  to  show, 
that  in  the  capacity  of  the  correspondents  or  agents  of  the 
complainants,  they  were  to  be  entrusted  with  the  manage- 
ment of  the  concern. 

If  that  were  not  the  case,  one  of  the  links  in  the  chain  of 
security,  which  the  complainants  evidently  intended  to  rely 
on,  would  have  been  effectually  broken. 

The  assignment  of  the  policies  of  insurance  was  intended 
to  afford  a  fund  for  the  complainants'  indemnity,  in  case  of 
loss  in  transitu.  Upon  the  arrival  of  the  subject  at  its  des- 
tined port,  it  was  to  be  committed  to  the  complainants'  con- 
signees^ at  the  risk  and  for  the  ultimate  account  of  the  de- 
fendant Leremboure,  but  exclusively  subject  to  the  disposi- 
tion of  the  complainants  ;  for  they  were  authorized  to  order 
the  proceeds  to  be  remitted  to  London,  and  unless  this  could 
be   done  without  the   interruption  or  control  *uf  the  de-  *  12 

fendant  Leremboure,  the  fund,  on  the  credit  of  which  the 
complainants  had  given  their  notes,  might  have  been  with- 
drawn, and  none  left  to  satisfy  the  bills  which  they  were 
authorized  to  draw  on  that  place. 


12  CASES  IN  ERROR  IN  THE 

ALBANY,  As  to  the  third  point. 

Feb.  I80.i.  .  l 

v  *-~     -*_'         1  »e  introduction  to  the  contract  is,  "  that  it  is  agreed 
i).  &  G.  Ludlow  between  the  subscribers  „■"  this  comprised  all  the  parties. 
Simonfi.  Every  subsequent  article,  the  last  excepted,  on  the  part 

~  of  the  defendant,  is  exclusively  imposed  on,  or  for  the 
benefit  of  the  defendant  Leremboure ;  he  is  to  ship  the  to- 
bacco and  sugars,  which  are  to  be  sold  for  his  account  and 
risk  ;  he  is  to  assign  the  policies  ;  he  is  to  be  at  the  risk  of 
the  remittances;  he  is  to  make  good  the  deficiencies,  and 
he  is  to  receive  the  surplus,  if  any. 

It  has,  therefore,  notwithstanding  this  general  introduc- 
tion, a  partitive  effect ;  it  contains  a  detail  of  the  stipula- 
tions between  the  complainants  and  the  defendant  Lerem- 
boure, particularly  prescribing  the  duties  and  obligations 
intended  to  be  thereby  imposed  on  each,  and  then,  as  a 
final  clause,  the  defendant  Leremboure,  "  agrees  to  make 
good  the  deficiency  as  soon  as  ascertained,  by  giving  his 
note  to  D.  Ludlow  &  Co.  payable  at  sixty  days,  the  same  to 
be  endorsed  by  L.  Simond  &?  Co.  who  hereby  agree  thereto" 
which  is  an  additional  indicium  of  the  intent  that  the  de- 
fendant Simond,  should  only  be  held  to  pay,  if  the  defend- 
ant Leremboure  did  not.  The  relation  of  principal  and  sure- 
ty is  strongly  inculcated  from  this  circumstance,  and  the 
whole  tenor  of  the  contract  appears  to  me  to  support  the 
*  13  same  ^construction.     I  am  therefore  of  opinion,  that  the 

defendant  Simond  is  to  be  considered  merely  as  a  surety. 
This  brings  me  to  the  fourth  question. 
It  may  tend  to  elucidate  this  point,  to  ascertain  the  time 
and  place  in  which  the  acts,  preparatory  to  the  liability  of 
the  defendant  Simond,  were  to  be  performed. 
1.  As  to  the  time. 

The  contract  bears  date  the  11th  day  of  March,  1799; 
it  contains  no  particular  limitation  when  the  shipments  were 
to  be  made,  but  it  seems,  the  tobacco  and  sugar  were  rea- 
dy for  exportation,  as  the  notes  were  to  be  furnished  when 
each   particular  shipment   should   be   completed,  one  haU 


STATE  OF  NEW- YORK.  13 

payable  in  four,  the  other  half  in  six  months.     It  appears       ALBANY, 
that  two  different  shipments  were  made  on  the  11th  of   v  ^  '      2j 
March,  (the  date  of  the  contract,)  and  the  6th  of  April,  d.  &  G.  Ludio* 
1799,  at  which  time  the  notes  stipulated  by  the   contract        simomi. 

were  given ;  the  complainants  by  its  terms  were  authorized ' 

to  draw  on  London,  at  sixty  days,  twenty  days  before  the 
days  xvhereon  the  notes  were  limited  to  be  paid,  and  to  di- 
rect a  remittance  of  the  proceeds  of  the  sales  to  be  made 
from  Hamburgh  to  London,  to  satisfy  the  bills  drawn  on 
the  latter  place ;  these  shipments,  on  the  data  furnished  by 
the  contract,  would  authorize  the  complainants  to  draw,  in 
the  months  of  yune  and  August,  for  the  first,  and  in  July 
and  September,  1799,  for  the  second,  periods  which,  with 
the  necessary  allowance  for  the  transmission  of  the  bills 
and  the  sixty  days  at  which  they  were  to  be  drawn  payable, 
are  the  criteria  from  which  the  intent  of  the  parties,  as  *to  *  14 

the  consummation  of  the  transaction,  is  to  be  collected. 

As  to  the  place. 

The  consignment  was  to  be  made  to  Buildcmaker  &?  Co. 
at  Hamburgh,  the  proceeds  of  the  sales  at  Hamburgh,  are 
spoken  of  in  another  part  of  the  contract ;  the  remittance 
was  to  be  made  by  Buildemaker  £s?  Co.  to  London;  the 
shipments  were  made  to  Hamburgh,  and  the  insurance 
limited  to  that  place.  All  these  circumstances  pointed  to 
Hamburgh,  in  its  locality,  for  the  conversion  of  the  articles 
shipped,  into  money,  and  from  which  the  remittance  was 
to  be  made. 

The  time  might  vary  according  to  circumstances,  but  an 
unwarrantable  delay,  though  it  might  have  promoted  the 
advantage  of  the  defendant  Leremboure,  if  he  had  remained 
solvent,  might  be  very  prejudicial  to  the  defendant  Simond, 
who  would  thus  be  prevented  from  taking  measures  for  his 
indemnity,  which  a  sense  of  danger  would  have  prompted, 
and  instead  of  depending  upon  an  insolvent,  he  might  have 
been  placed  at  least  in  a  situation  to  struggle  for  a  plank  in 
the  shipwreck.  This  he  is  now  totally  precluded  from ;  it 
is  therefore  incumbent  on  the  complainants  to  show  that 

cc 


14  CASES  IN  ERROR  IN  THE 

ALBANY,      they  have  been  so  vigilant  as  not  to  subject  him  to  loss  by 

Feb.  1805.       the  non.exeCution,  or  delay  in  the  execution  of  the  powers 

i^Tc^LmU^w  which  they  had  a  right  by  the  contract  to  exercise,  and 

~  v-  j         which  it  is  of  no  consequence  to  the  defendant  Simond, 

Simond. 

whether  delayed  by  the  act  of  the  complainants  solely,  or 

the  joint  act  of  the  parties  in  interest,  as  the  consent  of  one 

#  15  or  both  could  not  vary  his  ^situation,  or  the  precise  mea- 

sures of  his  responsibility. 

The  sale  of  the  169  hogsheads  of  tobacco  took  place  on 
the  3d  of  July,  1800,  probably  more  than  a  year  after  its 
arrival  at  Hamburgh,  for  no  part  of  the  evidence  ascertains 
the  time  of  its  arrival.  Daring  all  this  time  the  defendant 
Simond,  was  unapprized  of  the  result  of  the  speculation, 
and  precluded  from  taking  the  necessary  steps  to  protect 
himself  from  loss.  So  far  as  respects  the  place,  there  is  a 
palpable  departure  from  the  terms  of  the  contract,  not  even 
satisfactorily  explained  on  the  ground  of  its  being  advan- 
tageous, for  the  depositions  to  this  point  leave  the  subject 
where  they  found  it ;  that  of  Joachim  Ludwig  Steinbach, 
I  does  not  touch  the  period  during  which  the  tobacco  was  at 
Hamburgh  or  Rotterdam,  and  that  of  John  H.  Schmidt, 
states  the  price  of  Virginia  tobacco  from  the  month  of  Octo- 
ber, eight  months  after  it  was  embarked  for  Hamburgh, 
from  3.9.  3</.  to  4*.  Hamburgh  currency,  per  lb.  and  though 
it  has  been  admitted,  that  failures  of  great  extent  took  place 
at  Hamburgh  about  the  time  the  tobacco  in  question  ar- 
rived at  that  place,  there  is  no  proof  of  the  influence  of  that 
circumstance,  on  the  state  of  the  market,  nor  any  reason 
given  why  it  should  affect  the  tobacco  and  not  the  sugars. 

Indeed,  if  the  evidence  given  in  this  cause  was  apposite, 
it  would  show  there  was  a  market  for  tobacco  in  Ham- 
burgh, and  that  the  prevailing  price  at  that  place  might  or 
might  not,  according  to  the  different  constructions  of  which 
this  indistinct  evidence  is  susceptible,  have  been  more  than 
the  sales  ultimately  made  at  Rotterdam. 
#  16  *The  consideration  of  loss  occasioned  by  parting  with 

money  to  the  principal,  in  consequence  of  a  reliance  on  a 


STATE  OF  NEW- YORK.  10 

surety,  is  as  valid  and  meritorious  in  all  legal  and  equitable      ALBANY, 


Feb.  18(>5. 


I 


views,  as  a  benefit  or  profit  acquired  by  the  surety  person- 
ally, and  as  on  the  one  hand  the  surety  ought  to  be  held,  d.  &  G^Ludlow 
perhaps,  with  more  of  less  strictness,  according  to  circum-        —£r  , 

stances,  to  his  engagements  ;  so,  on  the  other,  the  surety's ■■ 

risk  ought  not  to  be  increased,  or  his  contract  varied  to  his 
prejudice. 

The  latter  of  these  positions  has  been  repeatedly  recog- 
nised in  the  British  courts,  and  though  most  of  the  cases 
bearing  on  this  point,  were  adjudged  since  the  revolution, 
and  so  no  authority  here,  the  principles  laid  down  in  them 
as  far  as  they  are  necessary  to  be  applied  to  the  present 
point ;  that  a  surety  cannot  be  carried  beyond  his  contract ; 
that  the  contract  made  by  the  parties  must  be  judged  of, 
and  not  another  substituted  in  its  stead  ;  that  it  cannot  be 
varied  without  his  consent,  and  that  a  surety  for  definite 
engagements  shall  not  be  extended  to  an  indefinite  one,  ap- 
pear to  me  correct,  f  t_2  Term  Hep. 

These  must  form  solid  grounds  of  equity,  by  which,  if  256.  2  Bmon'x 
this  cause  is  tested,  there  is  no  pretence  for  charging  the  Ves  :^5^  2 
defendant  Simond. 

Here  the  defendant  Simond  became  bound  for  a  definite 
object  to  respond  for  deficiencies  in  sales  made  at  Hani' 
burgh  in  a  reasonable  time.  The  complainants  seek  to 
charge  him  for  deficiencies  arising  on  sales  made  at  Rotter- 
dam at  a  later  period  than  the  contract  contemplated,  a  to- 
tally different  mart,  subject  to  a  different  government  and 
laws,  exposed  to  some  additional  risk,  and  certainly  to  ad- 
ditional expense,  *from  the  change  of  place,  and  the  in-  *  17 
convenience  of  a  change  of  agents,  not  entrusted  by  the 
parties ;  for  the  accounts  of  sales  are  subscribed  Roquette 
Buildemaker,  and  not  by  the  firm  of  Buildemakcr  £s?  Co. 

If  it  was  proper  to  send  the  subject  to  Rotterdam,  I  know 
of  no  principle  that  could  have  restrained  it  from  being 
sent  to  London.,  or  even  to  Canton,  in  quest  of  a  better 
market. 


r.  CASES  IN  ERROR  IN  THE 

ALBANY,  Upon  mature  reflection,  and  a  deliberate   review  of  all 

.  1*    the   circumstances   attending  this   case,  I   am  strongly  im- 

D.  &  G.  Ludlow  pressed  with  the  opinion,  that  the  defendant  Simond  is  not 

Simond.        chargeable,  and  that  as  to  him,  the  complainants  have  not 

■  sustained  their  bill,  and  it  must,  therefore,   be   dismissed 

with  costs. 

Woodzvorth,  Attorney-General,  for  the  appellants.  Be- 
fore the  merits  of  this  case  are  approached,  it  may  be  ne- 
cessary to  establish  that  the  suit  was  rightly  commenced  in 
the  court  of  chancery,  as  the  fit  and  proper  tribunal.  Equi- 
ty has,  in  many  instances,  a  concurrent  jurisdiction  with 
the  common  law,  but  it  is  invariably  the  forum  to  which  re- 
course is  to  be  had,  wherever,  upon  the  principles  of  univer- 
sal justice,  the  interference  of  a  court  of  judicature  is  u  ne- 
cessary to  prevent  a  wrong,  and  the  positive  law  is  silent." 
1  Fonb.  10.  n.  (/")•  ^n  matters  of  account  it  has  almost 
exclusive  jurisdiction,  and  the  mere  circumstance  of  its  be- 
ing requisite  to  state  one,  has  been  held  sufficient  to  warrant 
a  bill.  2  Eq.  Cas.  Abr.  4.  Here  the  basis  of  the  notes  to 
be  given,  was  a  balance  that  could  be  ascertained  only  by 
an  account.  Besides,  the  refusal  of  Lerembotire  to  give 
*  18  %he  note  Simond  was  to  endorse,  might  be  the  result  of 

combination  and  fraud,  which  chancery  alone  could  discover, 
and  relieve.  Any  suspicion  of  trick,  deceit,  and  contri- 
vance, is  sufficient  to  give  to  chancery  cognisance  of  the 
fXcA/crev.  Le  suit.  3  Atk.  654. f  If  there  was  any  doubt  hanging  over 
the  case,  whether  a  court  of  law  was  adequate  to  all  its 
emergencies,  it  would  afford  acknowledged  reason  for  equi- 
%  Weymouth  v.  table  interposition.  1  Vcs.  jun.  424.J  It  might  have  been 
made  a  question,  how  far  the  contract,  being  signed  only  by 
one  of  the  appellants,  and  having  but  one  seal  affixed,  could 
be  enforced  at  law.  But  as  it  is  proved  to  have  been  exe- 
cuted by  both  Daniel  and  Gidian  Ludlozv,  this  point  cannot 
now  be  insisted  on,  as  it  is  to  be  inferred  they  severally  ap- 
propriated the  same  seal  to  themselves.  This  would  be  a 
valid  execution  by  both.     In  Ball  v.  DumtervH/e,  4  D.  &? 


STATE  OF  NEW- YORK.  18 

£.   313.  a  single  seal  used  by  one  partner,  with  the  assent      ALBANY, 
of  the  other,  in  the  name  of  both,  was  held  obligatory  on     v  J^_ '  -^/ 
each.     Allowing,  however,  that  there  was  a  remedy  at  law,  D-  &  G-  Ludlow 
that  does  not  of  itself  oust  chancery  of  jurisdiction.     In        Simond. 
Billon  v.  Hyde,  1  Atk.  128.  a  verdict,  in  an  action  for  mo- 
ney had  and  received,  was  not  deemed  to  preclude  from  -x 
recurrence  to  equity  ;  because  the  subject  of  discussion  in- 
volved matters  of  contract  and  account.     Nay,  though  the 
very  reason  assigned  for  going  into  chancer}',  be  such  as  the 
chancellor  himself  would  have  allowed  the  benefit  of  at  law, 
it  does  not  prevent  an  application  to  equity ;  because  it  is 
possible  the  judge  before  whom  offered,  might  be  of  a  dif- 
ferent opinion.     Burrows  v.  Jemimo,  2  Str.  733.     In  mer- 
cantile transactions  relating  to  agents   and  ^factors,  a  con-  *  19 
current  jurisdiction  has   always  been  exercised.     3  Black. 
Comm.  437.     So  where  a  bond  was  lost,  there  was    form- 
erly no  remedy  but  in  chancery.  1    Ch.  Cos.  77.f     The  t  Underwood  v. 
law  is  otherwise  now,  but  still  relief  may  be  sought  as  be- 
fore ;  and  as  the  present  is,  perhaps,  a  case  of  suretyship, 
equity  is  the   most   appropriate  tribunal ;  for  a  surety,  noj: 
liable  at  law,  may  be  so  there ;  as  if  his  name  be  not  men- 
tioned in  the  body  of  an  obligation  which  he  has  signed. 
Crosby  v.  Middleton  and  others,  Prec.  in  Chancery,  309.  , 
So  equity  will  in  many  cases  set  up  against  a  surety,  debts 
extinguished  at  law.     Skip  v.  Huey,  3  Atk.  93.     But  how- 
ever forcible  the   argument  against  the  jurisdiction  might 
have  been,  it  is  too  late  to  urge   it  now.     The  respondent 
should  have  taken  advantage  of  it  primo  die,  by  plea  in  abate- 
ment.    He  cannot  avail  himself  of  it,  after  answering  and 
proceeding  to  a  hearing ;  for  by  so  doing,  he  has  submitted 
to  the  jurisdiction.     Penn  v.  Lord  Baltimore,  1  Fez.  447. 
The   merits  are  grounded  chiefly  on  Simond's  being  but  a 
surety.     This,  it  may  be  observed,  does  not  expressly  ap- 
pear, and  as  it  is  enforcing  very  strict  rules  to  do  away  the 
effect  of  a  contract,  the  onus  probandi  lay  on  the  respondent. 
He  should  have  substantiated  this  by  witnesses ;  for  by  the 
instrument  it  is  left  in  doubt,  though  it  may  be  inferred.    In- 


19  CASES  IN  ERROR  IN  THE 

ALBANY,      ference,  however,  ought  not  to  decide  this  question  ;  it  must 

^'ln^/    turn  on  the  construction  of  the  agreement.     The  rule  on  this 

D.  &  G.  Ludlow  subject  is,  that  the  intent  ought  to  govern.     1  Fonb.  427.  3 

Simond.        Atk.  136.f     Kaimes's  Prin.  of  Eg.  204.  239.     To  effectu. 

.  „  . ,     r,    ,    ate  this,  equity  is  more  liberal  than  a  court  of  law.     2  Atk. 

f  Smith  v.  Park-  '     ^      * 

nurst.  581.1     The  security  of  the  appellants,  was  the  object  of 

X   Bagshaiv     v.  +  J  Ir  '  J 

Spencer.  every  part  of  the  ^contract.     The  moderate   compensation 

they  were  to  receive,  is  a  proof  of  this.  A  commission  of 
2  1-2  per  cent,  could  never  be  meant  as  an  indemnity  for 
any  hazard  whatsoever.  The  goods  are  to  be  sold  at  the 
risk  of  Leremboure.  It  was  intended  therefore,  that  no  loss, 
resulting  from  the  sale,  should  be  thrown  on  the  appellants. 
Simond  assents  to  this,  and  guaranties  against  it.  That  the 
property  should  be  sold  at  Hamburgh,  was  not  of  the  es- 
sence of  the  contract.  The  goods  were  to  be  sent  to  Ham- 
burg]!,, to  be  sold,  and  not  to  be  sold  at  Hamburgh.  It  was 
too'rigorous  to  say,  that  the  agents  there  had  not  a  discre- 
tionary power  to  send  the  consignment  to  a  better  market. 
Whatever  was  bona  fide  done,  for  the  advantage  of  the  prin- 
cipals, is  to  be  protected.  It  is  a  mistake  to  imagine  that 
Buildanaker  £s?  Co.  were  the  exclusive  agents  of  the  appel- 
lants. The  contract  speaks  the  language  of  all  the  parties  to 
it,  and  that  says,  the  goods  shall  be  sent  to  Buildemaker  £s?  Co. 
They  were,  therefore,  as  much  the  agents  of  the  respondent, 
as  of  the  appellants.  Leremboure  consents  'that  they  shall 
sell  for  him,  and  at  his  risk.  What  is  this  but  constituting 
that  house  his  agent,  and  with  the  approbation  of  Simond '? 
If  this  fact  be  admitted,  it  is  immaterial  whether  the  agents 
were  authorized  to  send  the  goods  to  Rotterdam  or  not,  be- 
cause it  was  then  the  act  of  the  respondent.  Allowing,  how- 
ever, that  Buildemaker  £s?  Co.  were  the  agents  of  the  appel- 
lants only,  and  that  they  had  no  right  to  sell  at  any  other 
place  than  Hamburgh,  still  the  consequences  insisted  on 
would  not  follow.  The  utmost  that  could  be  claimed, 
*  21  would  be  a  deduction  adequate  to  the  actual  *loss  sustained 

by  the  breach  of  duty.     Here  it  is   manifest  from  the  ac- 
count of  sales,  that  there  has  been  a  gain  by  changing  the 
2 


STATE  OF  NEW-YORK.  31 

Dlace  of  sale.     Notwithstanding  this,  the  respondent  loudly     ALBANY, 

*  .       .      /.  i:   li     *~        *eb.  1805. 

insists,  that  because  he  is,  from  our  management,  liable  to  \^^^^j 

less  than  he  would  otherwise  have  had  to  pay,  he  is  there-  D.  &  G.  Ludlow 

fore  responsible  for  nothing.     Is  this  a  defence  to  be  en-        Simoud. 

dured  in  equity  ?  It  will  never  surely  be  urged,  that  from 

the  period  at  which  the  sales  took  place,  Simond  is  released. 

The  contract  limits  no  time,  within  which  they  were  to  be 

made.     Where  then  is  the  authority  for  making  it  criminal 

to  sell  in  one  month  more  than  in  another  ?  A  suretyship 

not  restrained  within   given  periods,  is  not  discharged  by 

lapse  of  time.     1  Bos.  tf  Pull.  419.f     Should  the  court  be  ££«  v.   I» 

of  opinion,  that  the  cause  rests  on  the  fact  of  the  property 

not  having  sold  for  more  at  Rotterdam  than  it  would  have 

produced  at  Hamburgh,  an  inquiry  may  be  directed  on  that 

point,  in  the  same  manner  as  in  cases  of  accounts ;  it  is  not 

unusual  to  refer  them  to  two  merchants.     Gyles  v.  Wilcox,  2 

Atk.  144. 

Hoffman,  Henry,   Van   Vechten,  and   Edivards,  contra. 
The  questions  in  this  case  ought  to  be  considered  without 
reference  to  Leremboure,  whose  acts  are  not  to  affect  Simond, 
the  only  real  respondent.     He,  it  is  evident,  on  viewing  the 
contract,  which  is  consistent  throughout,  could  be  no  more 
than  a  surety.     He  has  no  kind  of  beneficial  interest.     Nei- 
ther in  profits  nor  in  commissions  does  he  participate.    The 
only  character  in  which  he  appears,  is  that  of  a  guarantee 
against  loss.     He  has  only  oat  solitary  act  to  perform,  that 
of  making   good  any  deficiency  duly  incurred,  and  legally 
ascertained.     To  constitute  a  man  a  surety,  it  is  not  neces- 
sary that  in  the  instrument  he  should  be  *named  as  such.  *  22 
If,  from  its  nature  or  condition,  it  can  be  collected,  it  is 
sufficient.     Lord  Arlington  v.  Merrkke,  2  Sound.  411.  and 
the   authorities  in  notis.      If,  then,  the  respondent  be  a 
surety,  of  which  there  seems  to  be  no  doubt,  he  cannot,  as 
all  the  court  held  in  Wils.  539.J  be  bound  beyond  the  strict  tWrishtr.Ru* 
letter  of  his  contract.     The  same  principle  is  acknowledged  u 
in  1  D.  &  E.  291.  n.  («)•§     Nor  is  it  extended  in  equity  ;  §  Barclay  w.Lu. 


22  CASES  IN  ERROR  IN  THE 

ALBANY,  for  it  is  there  settled,  that  if  not  bound  at  law,  a  surety  shall 

VJ^-1S05-  not  be  liable  there.     1  Fern.  196.f     2  Fern.  393. X     2  Ch. 

D.  k  G.  Ludlow  Cas.  22.$     The  reason  of  these  cases  is,  that  sureties  have 

Simond  n0  beneficial  interest.     They  merely  exercise  their  bounty 

and    good  will,   without   consideration.      The    securities, 

Graves.  '  therefore,  into  which  they  enter,  stand  on  the  same  footing 

Vast&ln.V      '  as  voluntary  conveyances,  which  are  never  helped  in  equity. 

%eidPS°n  V"  2  Vent'  365*^     For'  before  tnat  tribunal,  the  very  motives 

%  Bonham  v.  on  which  they  engage,  render  them,  in  all  cases,  favourites 

Newcomb.  # 

of  the  court.     On  this   point,  every  authority  cited  is  a 
•»  3.M-.  93.       proof.     As  to  the  case  oiSkip  v.  Huey**  that  relates  only 
to  securities  destroyed  or  lost,  by  fraud  or  accident.     It  does 
not  warrant  the  extension  of  a  security.     And  though  Cros- 
ff  3  Ch.  Rep.  55.  by  v.  Middleton\\  seems  to  be  against  our  positions,  that 
case  may  well  be  doubted,  for  in   1   Fonb.  38.  n.  (xv)  it  is 
queried,  and  Sheffield  v.  Lord  Castleton  is  almost  directly  in 
opposition.     As,  then,  Simond  is  only  a  surety,  and  sureties 
are  never,  even  in  equity,  liable   beyond  the  letter  of  their 
engagements,  it  will  be  now  incumbent  to  show,  what,  by 
the  letter  of  the  present  engagement,  Simond  contracted  to 
perform,  to  make  good  such  deficiency  as  should  arise  on 
*  23  the  sales  of  the  cargo  *at  Hamburgh.     That  was  the  spot  at 

which  they  were  to  be  made.  It  is  reasonable  that  a  mer- 
cantile man,  should  guaranty  the  proceeds  of  a  sale  at  one 
market,  who  would,  by  no  means,  be  responsible  for  the  re- 
sult at  another.  The  insurances  were  made  no  further 
than  to  Hamburgh^  and  this  alone  evinces  that  the  adven- 
ture was  to  be  terminated  there.  The  contract,  therefore, 
was  varied  by  sending  the  goods  to  Rotterdam.  It  trans- 
ferred the  property  from  a  neutral  port  to  that  of  a  bellige- 
rent, and  took  it  out  of  the  security  of  one,  to  expose  it  to 
the  various  dangers  of  the  other.  This  procedure  extend- 
ed, also,  the  period  for  which  Simond  was  bound.  It  pro- 
tracted to  more  than  a  year  the  concluding  a  speculation, 
the  termination  of  which,  by  the  words  of  the  contract,  was 
never  contemplated  to  exceed  six  months.  The  respondent 
was,  therefore,  released.     Nisbet  v.  Smith.,  2  Bra.  Ch.  Rep. 


STATE  OF  NEW-YORK.  23 

584.     Rees  v.  Berrington,  2   Ves.  jun.  542.     Against  this      ALBANY, 
conclusion  it  is  urged,  that  Buildemaker  &?  Co.  were  the    i^?'     _^j 
agents  of  Simond,  at  least  of  him  and  Leremboure,  or,  if  not  D.  k  G.  Ludlow 
so,  then    of  all  parties ;  but,  that  they  could  not  be  consi-        simond 
dered  as  the   exclusive  representatives   of  the  appellants. 
The  object  of  the   contract,   and  its  various  parts,  show 
that  Buildemaker  fc?  Co.  were  the  agents  of  Ludlow  &?  Co. 
alone ;    they  were   the    correspondents   of  the   appellants ; 
the  shipments  were  under  their  mark  ;  they  were  consigned 
by  them ;  the  remittances  to  be  according  to  their  order ; 
the  accounts  to  be  rendered  to  them.     In  short,  they  were 
to  have  the  whole  control  of  the  adventure,  and  under  them 
Buildemaker  &?  Co.  to  act,  unamenable  to,  and  without  any 
interference  of,  Leremboure  or  Simond.     How  then  could 
Buildemaker  fe?  Co.  be  the  agents  of  persons  they  never  knew, 
*of  principals  by  whom  they  were  not  to  be  directed,  and  *  24 

to  whom  they  were  never  to  account  ?  It  follows,  therefore, 
that  they  were  exclusively  the  agents  of  the  appellants,  who, 
and  not  Simond,  must  bear  the  loss  arising  from  sales  made  in 
violation  of  the  contract.  For,  it  was  by  the  Ludloxvs  that 
confidence  was  placed  in  Buildemaker  cs?  Co.  and  the  rule  in 
equity  is,  that  "he  who  trusts  most  shall  lose  most."  3  Atk. 
93. f  Another  reason,  against  the  claim  of  the  appellants,  t  Skip  r.  ftwj. 
arises  from  the  very  manner  in  which  Simond  consented  to 
be  liable.  He  engaged  to  endorse  such  note  as  Leremboure 
should  give  for  such  deficiency  as  should  be  ascertained  on 
sales  at  Hamburgh.  Suppose  a  note  had  been  given  by 
Leremboure,  and  en  the  respondent's  refusal  to  endorse,  aa 
action  of  covenant,  which,  indeed,  is  the  true  and  only  reme- 
dv.had  been  brought  for  the  breach  of  contract,  would  not 
the  plaintiff  have  been  obliged  to  aver,  that  the  sales  were 
made  at  Hamburgh,  the  deficiency  on  such  sales  ascertained, 
and  the  making  of  the  note  ?  These  various  circumst: 
must,  therefore,  be  deemed  conditions  precedent  to  the  lia- 
bility of  Simond;  and  if  so,  he  cannot  be  responsible  till 
they  are  performed.  For,  where  a  condition  is  precedenr. 
it  must  be  shown  to  have  been  literally  fulfilled.     7  Re/>.  U 

Dd 


24  CASES  IN  ERROR  IN  THE 

ALBANY,      to    ll.f     It  admits  of  no  equivalent,  because  it  is  stricti 

**■  l*^j  juris.     5  Vin.  Mr.  tit.  Condition^  145.  pi.   27.     Co.  Litt. 

D.&OLudTow  218.  (a).     Nothing  can  be   argued  from  the  acknowledg- 

Siauind         merits  of  Leremboure^  stated  in  the  case.     The  contract  of 

one  man  cannot  be  varied  by  the  act  of  another.     If  I  enter 

t  3-.  re  scase.  .^  ^  bond  to  pay  such  sum  as  A.  shall,  after  8  days'  warn- 
ing to  appear,  be  condemned  in,  if  A.  appear  without  no- 
tice and  be  cast,  my  bond  will  not  be  forfeited.     7  Mod. 
*  Btirgram    v.  144.$     On  every  point,  therefore,  supposing  *  the  court  be- 

Jiotrers,  cited  by  ,      ,  .  r   .  .... 

Holt,  Ch.  J.  in  low  had  cognisance  ot  the  matter,  the  decision  was  correct. 
But  we  contend,  the  appellants  had  no  right  to  ask  the  in- 


son. 


*  25  terference  of  that  tribunal,  and  that  the  dismissal  of  the  bill, 

if  improperly  ordered  on  the  grounds  taken  by  the  Chan- 
cellor, must  now  be  directed,  for  want  of  jurisdiction.  Re- 
dress was  open  at  law,  in  an  action  for  damages.  There 
alone  it  ought  to  have  been  sought,  and  there  every  satisfac- 
tion might  have  been  obtained.  On  the  principle  of  ac- 
count, the  bill  could  never  have  been  sustained  ;  because  of 
no  privity  in  Shnond  with  respect  to  any  of  the  transactions. 
Nothing  rested  in  his  knowledge  which  he  could  disclose, 
and  he,  consequently,  was  not  liable  to  be  called  to  an  ac- 
count in  chancery.  Com.  Dig.  tit.  Chancery,  (2  A.)  through- 
out. 2  Fonb.  182,  183.  n.  (n).  1  Eq.  Cas.  Abr.  5.  n.  (rc) 
also.  The  concurrent  jurisdiction  of  equity,  in  matters  of 
account,  arises  only  from  the  right  to  obtain  a  discovery,  in 
which  case,  the  bill  is  retained  for  the  purpose  of  relief.  1 
Fonb.  10.  n.  (/).  But  what  discovery  can  be  obtained  from 
SimondP  the  prayer  of  the  bill  is,  in  fact,  for  damages ; 
not  for  a  specific  execution,  and  carries,  therefore,  in  itself, 
a  convincing  proof  that  the  application  ought  to  have  been 
to  another  forum.  The  authorities  cited  to  establish  that  it  is 
now  too  late  to  urge  any  thing  against  the  jurisdiction,  only 
prove  that  when  a  defendant  does  not,  in  his  answer,  make 
the  cognisance  of  the  court  a  point,  he  waives  it ;  not  that 
he  cannot  urge  it  in  his  answer.     A  defendant  may,  in  his 

§  Harris  v.  In-  answer,  insist  upon  his  law.     3  P.  Wms.  95. f     Hinde,  200. 
g,'edev>. 


STATE  OF  NEW-YORK.  25 

P.  Wms.  238.f     The  omission  of  a  defendant,  will  not      ALBANY, 

r       .      .     ,.     .  Feb.  18(15. 

confer  jurisdiction.  '^-r*^ , -*_!* 

D.  &  G.  Ludlow 

*Pendkton  and  Harison,  in  reply.     It  is  a  principle  of        Shnood. 
chancery,  that,  on  a  bill  to  account,  both  parties  are  actors,  , 

....  r  t    Wrotsley      v. 

and,  therelore,  if  Ludlow  &?  Co.  were  alone  to  render  one,  Bendish. 
still  it  would  be  a  proper  mode  ;  for,  it  often  happens  that, 
from  motives  of  prudence,  a  trustee  has  recourse  to  a  set- 
tlement in  equity.  To  form  an  adequate  judgment  on  the 
present  occasion,  the  situation  in  which  the  appellants  stood 
must  be  considered.  They,  in  truth,  were  only  trustees 
tor  Leremboure,  to  be,  at  all  events,  guarantied  against  any 
loss  from  undertaking  the  office,  and,  with  that  view,  .57- 
mond  entered  into  the  contract.  Adopting,  then,  these 
ideas,  we  admit  that  the  intent  ought  to  govern  in  the  ex- 
position. But  in  making  this  exposition,  it  ought  to  be  re- 
collected that  the  contract,  now  before  the  court,  and  on 
which  the  liability  of  the  respondent  arises,  was  of  a  mer- 
cantile nature.  A  liberal  construction,  such  as  would  be 
given  to  a  will,  is  that  which,  it  is  presumed,  it  would  be 
proper  to  adopt.  The  doctrine,  then,  of  conditions  prece- 
dent, must  necessarilv  be  exploded  ;  nor,  indeed,  could  it 
ever  apply,  except  by  overlooking  the  distinction  between 
those  conditions  which  lie  in  compensation,  and  those  which 
do  not.  Viewing,  then,  this  as  a  commercial  transaction, 
in  which  the  appellants  became  trustees,  on  consideration 
of  being  kept  harmless,  it  follows  that,  if  their  conduct  has 
been  bona  fide,  they  are  entitled  to  the  indemnity,  on  the 
faith  of  which  they  undertook  the  trust.  The  very  essence 
of  it  was  reimbursement  for  the  notes  the}'  gave,  or  the  bills 
they  might  draw.  Any  deficiency,  however  arising,  was, 
if  they  were  not  in  fault,  to  be  made  good.  Suppose  the 
property  had  been  consumed  by  fire,  in  warehouses,  at 
Hamburgh-,  must  the  appellants  have  borne  the  loss  ?  Yet, 
*tothis,  and  a  hundred  other  equally  gross  results,  would  .%  «,►, 

the  reasoning  on  conditions  precedent  necessarily  lead.     It 
is  a  mistake  to  say,  that  Buildcmakcr  Si?  Co.  were  the  exclu- 


m  CASES  IN  ERROR  IN  THE 

sive  agents  of  the  Ludloxvs.  They  were  equally  agents  of 
the  cestui  que  trusty  being  nominated,  or  assented  to  by  all 

V.  6i.  «.VLu(iiow  parties,  for  the  purpose  of  carrying  the  contract  into  effect. 
Simond.        ^ut  allowing  the  arguments  against  us,  on  this  point,  to  be 

— — correct,  who  ever  heard  that  a  trustee  was  liable  for  the 

conduct  of  an  agent,  appointed  bona  jide,  and  within  the 
limits  of  his  authority  ?  We  deny,  however,  that  these 
agents  have  been  guilty  of  any  misbehaviour.  It  is  within 
the  scope  of  an  agent's  power  to  change  the  place  of  sale. 
He  is  not  bound  to  sell  on  the  spot  where  the  goods  are  con- 
signed to  him.  He  may  transmit  them  to  another  market, 
and  all  that  is  required,  in  the  exercise  of  this  discretion, 
is,  that  it  should  not  be  at  an  unreasonable  distance.  In  the 
present  instance  it  was  rightly  done.  There  was  no  price 
to  be  obtained  at  Hamburgh.  The  recent  failures,  though 
they  left  a  market,  gave  no  price;  for,  between  a  market 
and  a  price,  there  is  a  wide  difference.  The  former  signi- 
fies a  possibility  of  sale.  The  latter  such  a  one  as  is  ade- 
quate and  beneficial.  Sending  to  Rotterdam  obtained  a 
price,  and  that  was  a  sufficient  reason  for  the  measure.  No 
mala  Jides  can  be  imputed.  The  contrary  appears.  Had 
any  existed,  a  sale  at  Hamburgh  to  themselves,  or  friendly 
purchasers,  would  have  enabled  Buildemakcr  &?  Co.  to  avail 
themselves  of  the  Rotterdam  price  for  their  own  benefit. 
The  counsel  opposed  to  us,  are  not  aware  of  the  conse- 
quences which  a  denial  of  this  discretion  might  induce. 
Suppose  at  Rotterdam   a  profit  of  50,000  dollars ;  would 

*  28  Buildemqker  £s?  Co.  have  been  ^entitled  to  retain  it  ?     Yet, 

on  the  argument  of  an  indispensable  obligation  to  sell  at 
Hamburgh,  the  proceeds  at  Rotterdam  ought  to  be  theirs. 
For,  if  liable  to  make  good  a  loss  resulting  from  such  sale, 
the  profit  must  belong  to  them.  The  fact  is,  that  Ham- 
burgh was  the  contemplated,  but  not  the  stipulated,  port. 
If,  then,  the  place  of  sale  was  not  restricted,  still  less  so 
was  the  time.  Nothing  but  inference  can  be  used  to  esta- 
blish such  a  position,  and  a  surety  is  not,  with  all  the  lean- 
ing of  courts  in  his  favour,  to  be  discharged  from  the  letter 


STATE  OF  NEW- YORK.  28 

of  his  contract  by  mere  implication.     If  his.  responsibilities      ALBANY 
are  not  to  be  increased,  his  exemptions  are  not  to  be  multi-    v  *^b' lStlD' 
plied.     But  the  words  of  the  instrument,  and  its  positive  d  &  q  Ludlow 
provisions,  show  an  expectation  of  a  possible  lapse  of  time        gii  *•  . 
in  winding  up  the  adventure,  far  beyond  that  allowed  by  ■     — 

the  opposite  side.  It  is  expressly  agreed,  that  the  appel- 
lants shall  have  interest  on  their  advances.  Now  interest 
never  runs  till  after  die  day  of  payment.  On  the  other 
points  we  think  enough  has  been  shown  in  the  opening,  to 
warrant  the  reversal  of  the  decree  appealed  from. 

Spencer,  J.  In  the  discussion  of  this  cause,  the  coun- 
sel have  rested  their  arguments  on  two  principal  points. 

1st.  Whether  the  court  of  chancery  had  jurisdiction  of 
this  cause  ? 

2d.  Whether  the  respondent  Simond  has,  from  the  facts 
proved,  been  discharged  from  his  responsibility  on  the 
contract  entered  into  between  the  appellants,  Leremboure, 
and  himself  ? 

I  shall  not  enter  into  a  particular  consideration  of  the 
first  question,  because,  it  is  immaterial,  in  the  view  I  have 
taken  of  the  subject,  whether  the  court  #of  chancery  had,  *  oq 

or  had  not  jurisdiction.  I  wish,  however,  to  be  explicitly 
understood  as  not  subscribing  to  the  proposition,  that  that 
court  had  cognizance  of  the  cause  on  any  of  the  grounds 
urged  by  the  appellants'  counsel ;  and  did  it  rest  solely  on 
that  point,  the  strong  inclination  of  my  opinion  is,  that  the 
appellants*  relief,  if  any  they  are  entitled  to,  is  at  law. 

It  cannot  be  controverted,  but  that  Simond  is  a  surety, 
or  guaranty  for  the  performance  of  Ltremboure's  contract, 
so  far  forth  as  respects  the  endorsement  of  a  note  which 
the  latter  stipulated  to  give  Daniel  Ludlow  &?  Co.  for  the 
deficiency  of  the  proceeds  of  the  sales  of  the  goods  men- 
tioned in  the  contract.  He  is  a  surety  merely,  without  the 
chance  of  reaping  any  benefit  from  the  enterprise  ;  he  has 
no  interest  in  the  adventure,  and  does  not  appear  to  have 
been  indemnified  by  any  security  for  this  gratuitous  under- 


29  CASES  IN  ERROR  IN  THE 

ALBANY,       taking,  and  although  it  was  suggested,  that  he  might  have 
been  interested  or  secured,  yet  no  facts  appear  in  the  case 


D.  he  G.  Ludlow  to  warrant  those  suggestions,  and  the  court  are   to  judge 
Simond.         secundum  allegata  et  probata.     I  proceed,  therefore,  on  the 

"     —  fact,  that  Simond  was  a  surety,  without  any  interest  in  the 

subject  matter  of  the  contract,  and  without  any  counter- 
security. 

It  has  been  correctly  urged,  that  sureties  are  favourites 
of  courts  of  equity,  and  that  those  courts  will  not  bind 
them,  where  they  are  not  strictly  bound  at  law.  It  may, 
in  the  same  sense,  be  said,  that  they  are  favourites  of 
courts  of  law ;  and  that  there  they  will  not  be  bound  be- 
yond the  scope  of  their  engagements.  These  maxims,  if  I 
may  so  call  them,  grow  out  of  the  consideration,  that  in 
the  various  transactions  of  life,  men  are  liable  to  be  called 

*  30  on  to   render  *acts    of  neighbourly  kindness,  without  any 

interest  or  expectation  of  reward  ;  that  they  are  frequently 
called  on  to  become  bail,  endorsors  of  notes,  guarantees  in 
various  modes,  and  when,  in  such  cases,  the  principal 
turns  out  to  be  insolvent,  it  becomes  a  question  which  of 
two  innocent  parties  shall  sustain  a  loss.  Both  courts  of 
equity  and  law  will  cast  the  responsibility  on  the  surety, 
if,  by  the  terms  of  his  engagement,  he  has  assumed  it ; 
but  neither  of  them  will  do  this  where  he  is  not  brought 
within  the  precise  scope  of  his  undertaking. 

The  authorities  on  this  subject  are  very  uniform  ;  they 
speak  a  language  not  to  be  misunderstood,  and,  without 
detaining  the  court  by  an  enumeration  of  them,  I  am  fully 
justified,  by  those  cited,  in  saying  that,  both  in  law  and 
equity,  contracts,  involving  the  rights  of  sureties,  will,  so 
far  as  respects  them,  receive  a  more  rigid  and  less  liberal 
construction,  than  between  the  original  contracting  par- 
ties. 

I  shall  uot  unnecessarily  repeat  the  facts  in  this  cause. 
The  material  ones  are,  that  by  the  contract,  subscribed  by 
the  respondent,  it  was  stipulated,  that  Leremboure  should 
put  on  board  one  or  more  vessels,  tobacco  and  sugars  at 

<      2 


STATE  OF  NEW-YORK.  30 

certain  fixed  prices,  of  the  value  of  40,000  dollars.     That      ALBANY 
these  goods  should  be  consigned,  under  bills  of  lading,  to       ieb.  isos. 
Buildemaker  fc?  Co.  the  appellants'  correspondents  at  Ham-  D.  &  G.  Ludlow 
burgh,  to  be  sold  for  the  account  and  risk  of  Leremboure ;        Simond. 
that  he  should  insure  them,  and  assign  the  policies  to  the  - 

appellants,  who  should  receive  from  the  underwriters  the 
amount  of  the  losses  to  reimburse  themselves,  the  appel- 
lants stipulating  to  furnish  their  notes  to  Leremboure  for  the 
40,000  dollars,  payable,  the  one  half  *at  four  months,  the  *  31 

other  half  at  six  months,  and  if  the  proceeds  of  the  ship- 
ments should  exceed  the  amount  due  the  appellants,  they 
were  to  be  answerable  to  Leremboure  for  the  difference  when 
in  cash. 

If  the  policies  did  not  furnish  a  mode  of  reimbursement, 
then  the  appellants  were  authorized  to  draw  at  sixty  days 
sight  on  London,  twenty  days  before  their  notes  respect- 
ively became  due,  at  the  then  current  exchange,  and  to  or- 
der the  necessary  remittances  to  be  made  by  Buildemaker 
&?  Co*  at  the  risk  of  Leremboure,  both  as  to  the  validity  of 
the  bills,  and  the  solvency  of  the  house  in  London,  to  whom 
the  same  should  be  made,  and  should  the  proceeds  of  the 
sales  at  Hamburgh,  so  disposed  of,  not  prove  sufficient  to 
reimburse  the  appellants  the  amount  of  their  several  notes, 
together  with  what  interest  might  be  due  them  on  their 
advances,  their  commissions,  and  all  other  charges  attend- 
ing the  negotiation,  leremboure  agreed  to  make  good  the 
deficiency,  as  soon  as  ascertained,  by  giving  his  note  to  the 
appellants  payable  at  60  days,  to  be  endorsed  by  the  respond- 
ent, who  agreed  thereto. 

The  shipments  were  made  on  the  11th  of  March,  and  the 
6th  of  April,  1799,  at  which  time  the  appellants  gave  their 
notes  stipulated  to  be  given  by  the  contract.  The  cargoes 
shipped  and  consigned  to  Buildemaker  &?  Co.  arrived  safe 
in  the  summer  of  that  year.  Previous  to  the  arrival  of  the 
cargoes,  a  great  change  had  taken  place  in  the  market  at 
Hamburgh,  and  many  failures  had  happened  among  the 
principal  traders  there.     Buildemaker  £s?  Co.  without  any  di- 


31  CASES  IN  ERROR  IN  THE 

ALBANY,      rcctions  from  the  appellants,  sent  219  hogsheads  of  tobacco 
.  _•    to  Rotterdam,  where  they  were  sold  *in  December,  1799, 

D.  fc  tt.  Ludlow  and  the  summer  of  1800,  in  the  name  of  the    appellants. 
Simontl         The  proceeds  of  the  sales  were  insufficient  to  reimburse  the 

appellants   the  amount  of  their  notes,  with  interest,  com- 

°~  missions  and  charges,  and  for  that  deficiency  the  suit  below 

was  instituted  against  Leremboure  and  the  respondent.  It 
appears  that,  after  the  accounts  had  been  received  from 
Buildemaker  &?  Co.  the  appellants  presented  them  to  Lerem- 
boure, who  overlooked  them,  and  said  they  were  right,  but 
that,  having  become  insolvent,  and  being  then  confined  for 
debt,  he  refused  to  give  his  note  for  the  deficiency,  and  both 
he  and  the  respondent  refused,  after  the  time  had  elapsed 
when  such  note,  if  given,  would  have  become  payable,  to 
pay  the  appellants  the  balance,  which  the  appellants  claim  to 
be  24,044  dollars  82  cents. 

The  only  proof  of  the  price  of  tobacco  at  Hamburgh, 
is  derived  from  the  deposition  of  John  H.  Schmidti  who 
states,  that  the  price  of  Virginia  tobacco  there,  from  the 
month  of  October,  1799,  to  the  latter  end  of  the  year,  was, 
from  three  and  nine-pence  to  four  shillings  a  pound,  Ham- 
burgh currency ;  but  that  he  does  not  know  the  price  in  the 
summer  of  that  year,  although  Maryland  tobacco  was  con- 
siderably higher  than  Virginia,  during  that  period.  It 
would  seem  that  the  sending  the  tobacco  to  Rotterdam  has 
saved  those  interested  in  the  proceeds  from  3,000  to  6,000 
dollars,  if  the  price  at  Hamburgh,  in  the  summer  of  1799, 
was  not  higher  than  in  the  fall  of  that  year,  and  the  year  en- 
suing. 

There  is  no  proof  in  the  cause,  that,  on  account  of  the 

*  33  failures  at  Hamburgh,  the  tobacco  was  unsaleable ;  *on  the 

contrary,  it  appears  that  the  sugars  were  sold,  and  that  in  Oc- 
tober, 1799,  tobacco  was  saleable. 

From  this  state  of  fact3  arises  the  question,  whether  the 
respondent  is  to  be  holden  responsible  for  the  deficiency  of 
the  sales?  and,  in  my  opinion,  he  is  not  responsible.  The 
contract  he  has  entered  into,  obliges  him  to  endorse  Lerem* 


STATE  OF  NEW- YORK.  33 

boure's  note  for  the  deficiency  of  the  proceeds  of  the  sales      ALBANY, 
at  Hamburgh.     The  place  of  the  sales  is,  in  my  conception,    ^J^^-^j 
not  only  a  condition  precedent,  but  it  enters  into  the  sub-  D  &  G-  Lmiiow 
stance  of  the  contract.     It  may  not  appear,  at  first  view,  at        Simond. 
all  material  where  the  sales  were  made,  provided  the  goods 
were  sold  for  the  best  price  that  could  be  obtained  ;  but  it 
will,  on  examination,  appear  extremely  important  to  the  re- 
spondent, that  the   sales  should  have  been  made  at   Ham- 
burgh,  rather  than  Rotterdam.     Whether,  however,  this  be 
or  be  not  material,  if  Hamburgh  was  agreed  by  the  contract 
to  be  the  place  of  sale,  then  on  principles,  as  applicable  to 
sureties,  the  respondent  is  discharged. 

That  Hamburgh  was  the  designated  place  of  sale  is  mani- 
fest, not  only  from  the  words  of  the  contract,  but  from 
its  plain  and  evident  meaning.  The  goods  were  consigned 
to  Buildemaker  &?  Co.  to  be  sold  ;  the  consignment  to  this 
house,  transacting  business  at  Hamburgh,  a  great  commer- 
cial city,  imports,  in  itself,  that  the  sales  were  to  be  there. 
The  insurances  extending  no  further  than  to  Hamburgh,  is 
still  more  demonstrative  of  the  sense  and  understanding  of 
the  parties,  that  they  were  to  go  no  further.  The  want  of 
provision  in  the  contract  for  any  other  market,  and,  above 
all,  the  express  terms  of  the  contract,  whereby  *the  respond-  *  34, 

ent  engaged  to  endorse  Leremboure's  note  for  the  deficiency 
of  the  proceeds  of  the  sales  at  Hamburgh,  leave,  I  think, 
not  a  particle  of  doubt  on  that  subject. 

This  case  is,  then,  perfectly  analogous  to  the  case  in  2 
Chan.  Cas.  22.  where  a  bond  was  given  by  a  principal  and 
his  surety,  to  pay  such  sum  as  N.  H.  a  master  in  chancery, 
should  report.  The  master  agreed  on  died  without  making 
a  report.  The  chancellor  determined  on  the  principle  I 
have  stated,  that  the  surety,  not  being  bound  at  law,  should 
not  be  hoiden  in  equity. 

The  sales  not  having  been  made  at  Hamburgh,  is,  I  think, 
matter  of  substance.  I  have  observed  already,  that  the  ap- 
pellants gave  their  notes  on  the  1 1  th  of  March,  and  6th  of 


34  CASES  IN  ERROR  IN  THE 

ALBANY,      April,  1799.     The  first  became  payable  the  14th  of  July^ 
(    ^_'        '  .    and  the  last  the  9th  of  October ,  in  that  year.     The  appel- 
D  &  G.  Ludimv  lants  contemplated,  beyond  a  doubt,  to  meet  these  notes  by 
Simond.        drafts  on  London,  at  sixty  days  sight,  and  for  that  purpose 
Leremboure  authorized  them  to  draw  bills,  twenty  days  be- 
fore  their  notes  respectively  became  due,  and  to  order  the. 
necessary  remittances  to  be  made  by  Buildemaker  &?  Co.  to 
their  friends  in  London,  on  whom  they  might  value  to  meet 
their  drafts.     From  this  arrangement  the  respondent  must 
have  contemplated,  when  he  entered  into  the  contract,  that 
the  cargoes  thus  shipped  were  to  be  sold,  so  as  to  form  a 
fund  for  the    payment  of  the  bills  to  be  drawn   by  the  ap- 
pellants, and  that  the  term  of  his  responsibility  would  not 
be  extended  beyond  the  last  of  the  year  1799.     Instead  of 
this,  by  the  transportation   of  the  goods   to  Rotterdam,  the 
*  35  period  of  his  responsibility  was  enlarged  to  *the  30th  o£Sep~ 
tember,  1800,  a  time  far  beyond  any  ideas  he  could  have 
formed  from  the   provisions  of  the  contract.     Had  it  not 
been  thus  enlarged,  and  the  goods   been  sold  for  the  lowest 
possible  price  at  Hamburgh,   he   might,  for  aught  that  ap- 
pears, have  secured  himself  before  Leremboure  became  in- 
solvent.    As  in  the  case  of  Rees  v.  Berrington,  2  Ves.  jun. 
543.  so  here,  in  the  language  of  Lord  Loughborough,  "  we 
cannot  try  the  cause  by  inquiring  what  mischief  it  may  have 
done  ;  (to  send  the  goods  to  Rotterdam;)  for  that  would  go  into 
a  variety  of  speculation,  upon  which  no  sound  principle 
could  be  built." 

To  hold  the  respondent  liable,  notwithstanding  the  terms 
have  not  been  complied  with,  on  which  alone  his  responsi- 
bility was  to  arise,  would  be  substituting  another  contract 
in  lieu  of  the  one  the  parties  have  made.  It  is  impossible 
to  say,  that  a  contract,  agreeing  to  be  responsible  for  the  de- 
ficiency of  the  proceeds  of  sales  at  Hamburgh,  ought  to  be 
construed  to  be  a  contract  to  be  responsible  for  the  defi- 
ciency of  the  proceeds  of  sales  au  Rotterdam. 

It  has  been  urged  by  the  appellants'  counsel,  that  Builde- 
maker  &?  Co.  were  not  exclusively  their  agents,  and  that  they 


STATE  OF  NEW-YORK.  55 

acted  without  their  directions,  in  sending  the  goods  to  Rou  alb  amy 
terdam,  and  that  they  had,  by  law,  a  right  to  send  them  to  a  v  b"h' 1805, 
neighbouring  marlfet  for  a  better  price.  D.  &  g.  Ludlow 

It  will  not,  I  trust,  be  contended,  that  had  the  appellants        simimd. 

ordered  the  goods  to  Rotterdam,  in  case  a  higher  price  could  ■ 

have  been  there  obtained,  that,  then,  the  respondent  would 
have  been  liable.  If,  in  that  case,  all  responsibility  would 
have  been  gone,  how  can  it  alter  the  case,  as  respects  the  re- 
spondent, *by  what  means  the  goods  were  sent  there  I  He  *  36 
had  no  control  over  them ;  and  if  his  responsibility  is  ex- 
tended beyond  the  terms  of  his  contract,  however  hard  the 
case  may  be  as  regards  the  appellants,  it  would  be  harder  as 
respects  him.  If,  by  law,  an  agent  receiving  a  consignment 
of  goods  to  sell,  may  send  them  to  another  market,  which  I 
am  not  prepared  to  admit,  then  the  appellants  may  be 
chargeable  with  negligence  in  not  instructing  Buildcmaker 
&?  Co.  to  sell  at  Hamburgh.  But  if,  as  I  incline  to  think, 
they  could  not,  as  consignees,  have  sent  their  goods  to  ano- 
ther market,  they  would,  under  the  facts  proved  in  this  case, 
be  responsible  to  the  appellants,  unless  they  have  affirmed 
their  acts,  and  thus  concluded  themselves.  u  A  man  may," 
says  Chief  Justice  Willes,  in  his  Reports,  p.  407.  "in  many- 
cases,  either  consider  another  as  a  wrongdoer,  or  a  receiver 
of  money  for  his  use,  as  he  thinks  best,  and  most  for  his 
advantage."  In  this  case,  the  appellants  have,  it  appears  to 
me,  affirmed  the  acts  of  Ruildemaker  cs?  Co.  in  selling  the 
goods  at  Rotterdam,  by  receiving  their  accounts,  and  pass- 
ing the  proceeds  of  the  sales  there,  to  the  credit  of  Lercm- 

-  houre.  This  fact  appears  by  the  accounts  exhibited  by  the 
appellants.  It  then  turns  out  to  have  been  a  sale  at  Rotter- 
dam, contrary  to  the  contract,  assented  to  by  matter  ex  post 

facto  by  the  appellants,  and  this  I  consider  another  insu- 
perable difficulty. to  their  recovery. 

The  amount  in  demand,  and  the  learned  and  ingenious 
arguments  submitted  to  the  court,  have  induced  all  the  re- 
search and  examination  in  my  power  to  bestow.  The  clear 
and  decided  result  is,  that  the  respondent  is  discharged  from 


8r*  CASES  IN  ERROR  IN  THE 

ALBANY,      his  responsibility  on   the   ^contract ;  and,  although   I   per- 

v    1/"       ■■-       ceive  that  the   appellants   have  conducted  themselves  with 

t).i&  g.  Ludlow  perfect  good  faith;  that  the  loss  is,  to  them,  a  severe  mis- 

Sfrabnd.         fortune,  I  am  unwilling  to  restore   them   their  losses,  by 

'■ inflicting  an  injury  on  a  man  having  a  perfectly  legal  and 

meritorious  defence.     In  my  opinion,  therefore,  the  decree 
of  the  Chancellor  must  be  affirmed  with  costs  to  be  taxed. 


Thompson,  J.  This  case  naturally  divides  itself  into 
two  general  subjects  of  inquiry:  1st.  As  it  respects  the 
remedy,  whether,  if  any,  it  ought  to  be  in  a  court  of  law, 
or  in  a  court  of  equity  ?  2d.  As  it  respects  the  rights  of  the 
parties. 

The  first  may  be  considered,  in  some  measure,  as  matter 
of  form  ;  the  second  as  matter  of  substance  ;  and  although 
it  might  be  deemed  more  correct,  in  point  of  order,  to  de- 
termine the  right  before  the  remedy,  yet,  as  I  shall  exa- 
mine both  questions,  not  knowing  the  course  that  may  be 
pursued  by  other  members  of  the  court,  the  order  of  exa- 
mination becomes  immaterial. 

There  are  several  grounds,  I  think,  upon  which  the  ap- 
pellants had  a  right  to  go  into  equity  for  relief. 

It  is  undoubtedly  important  to  the  ends  of  justice,  that 
the  boundary  between  the  jurisdiction  of  courts  of  law  and 
courts  of  equity,  should  be  plainly  marked  and  strictly  pur- 
sued. Were,  indeed,  the  present  an  attempt  to  overleap 
the  boundaries  heretofore  established,  it  might  present  a  dif- 
ferent question  ;  but  that,  I  think,  is  not  the  case  here.  By 
the  ancient  rule,  according  to  Lord  Cokey  4  Inst,  84.  the  ju- 
risdiction of  the  court  of  chancery  was  confined  to  frauds, 
*  38  accidents  and  trusts.     So  in   10  Mod.  Rep.  1.     *But  that 

jurisdiction  has  been  gradually  extended,  and  Fonblanqiie,'va 
the  first  volume,  page  8.  of  his  valuable  treatise,  observes, 
that  the  English  courts  of  law  are,  equally  with  their  courts 
of  equity,  chargeable  with  having  extended  their  jurisdic- 
tion by  the  aid  of  fiction  ;  and  that  if  courts  of  equity,  pro- 
fessing to  proceed  upon  the  ground  of  the  party  being  re- 


STATE  OF  NEW-YORK.  38 

mediless  at  law,  to  take  cognisance  of  some  matters,  of     albany, 
which  courts  of  law  would  now  take  cognisance,  they  will    v_jl ' i8^"  , 
be  found  originally  to  have  derived  their  jurisdiction  from  d.  &  g.  Ludlow 
the  narrow  decisions  of  courts  of  law,  and  having  once        simond. 

strictly  possessed  it,  courts  of  law  ought  not  to  be  at  liberty 

at  pleasure  to  deprive  them  of  it.  The  jurisdiction,  he  again 
says,  page  11.  exercised  by  courts  of  equity  may  be  consi- 
dered, in  some  cases,  as  assistant  to,  in  some,  concurrent 
with,  and  in  others,  exclusive  of,  the  jurisdiction  of  courts 
of  common  law. 

Matters  of  account  form  one  class  of  cases,  wherein  courts 
of  law  and  equity  exercise  concurrent  jurisdiction.  Black- 
stone,  3  Comm.  437.  lays  it  down  as  extending  to  all  matters 
of  account ;  and  it  is  a  subject,  I  think,  over  which  the  ju- 
risdiction of  a  court  of  equity  ought  to  receive  a  liberal  con- 
struction, because,  the  mode  of  proceeding  is  more  pecu- 
liarly adapted  to  a  deliberate  examination,  and  correct  set- 
tlement. All  parties  in  the  present  case,  were  interested 
in  having  the  account  stated.  The  result  was  the  basis, 
upon  which  the  respective  rights,  and  responsibilities  of  the 
parties  depended.  The  account  being  to  be  stated  by  the 
appellants  themselves,  cannot  alter  the  question.  The 
other  party  had  a  right  to  contest  it,  and  the  same  examina- 
tion might  be  involved  *as  if  the  defendants  below  had  been  #  gg 
called  upon  to  account.  In  matters  of  account  both  parties 
are  actors.  1  P.  Wms.  363.  Hence  it  is,  that  after  a  de- 
cree to  account,  a  defendant  may  revive  the  suit ;  because, 
say  the  authorities,  in  such  case  the  defendant  is  consider- 
ed as  an  actor  ;  for,  until  the  account  is  taken,  it  is  not 
known  where  the  balance  lies.  Although  the  account,  as 
stated,  was  admitted  by  Leremboure,  it  was  not  by  Simond. 

The  necessity  of  a  discovery  might  originally  have  been 
the  foundation  of  the  jurisdiction  of  a  court  of  chancery,  in 
matters  of  account ;  still  I  cannot  discover  from  authorities, 
that  it  is  now  restricted  to  cases  of  that  description.  Mit- 
ford,  111.  says,  that  in  matters  of  account,  equity  has  a 
concurrent  jurisdiction  with  courts  of  common  law,  in  cases 


59  CASES  IN  ERROR  IN  THE 

ALBANY,      where  no  difficulty  would  have  attended  the  proceeding  in 

^^J    those  courts.     S.  P.  3  P.  Wms.  251.  n.  A.     And  I  can  see 

J)  &  G.  Ludlow  no  good  reason  why  a  trustee,  who  is  desirous  of  having 

Simond.        his  accounts  settled,  should  not  be   at  liberty  to  call   the 

— — — — —  cestui  que  trust  into  a  court  of  equity  for  that  purpose. 

There  is  another  ground,  I  think,  for  sustaining  the  bill. 
Leremboure  had  refused  to  give  his  note  for  the  deficiency, 
and  it  may  be  doubtful,  whether  a  specific  performance  in 
this  respect  was  not  necessary  for  the  purpose  of  charging 
Simond.  If  also,  any  fraud  or  collusion  had  been  practised 
between  them,  it  would,  in  a  peculiar  manner,  be  an  ob- 
ject of  chancery  jurisdiction. 

The  transaction  was  complex,  the  remedy  at  law  diffi- 
cult.    1  Stra.  733.     Mr.  Justice  Butter,  when  sitting  for 
*  40  the  Lord  Chancellor,  in  the   case  of  Weymouth  v.  *Boyer, 

1  Ves.  jun.  424.  says,  "  we  have  the  authority  of  Lord 
Hardwkke,  that  if  a  case  be  doubtful,  or  the  remedy  at  law 
difficult,  he  would  not  pronounce  against  the  jurisdiction  of 
this  court,  and  the  same  principle  has  been  laid  down  by 
Lord  Bathurst."  Matters  of  account  are  proper  subjects 
for  a  court  of  equity.  1  Atk.  128.  It  does  not  follow, 
diat  because  a  court  of  law  would  give  relief,  a  court 
of  equity  loses  the  concurrent  jurisdiction,  which  it  has  in 
matters  properly  cognisable  there.  3  Bra.  Ch.  Ca.  224.  In 
Wright  v.  Hunter,  5  Ves.  jun.  794.  the  master  of  the  rolls 
says,  M  I  would  not  lay  it  down,  that  because  courts  of  law 
may  entertain  actions  upon  such  subjects,"  (a  case  of  con- 
tribution among  partners,)  "  a  party  may  not  file  a  bill  for 
contribution  ;"  for  though  he  thought  the  question  more 
proper  to  be  tried  at  law,  the  plaintiff  was  very  well  justifi- 
ed in  coming  there  ;  "  for,"  he  adds,  "  this  court  has  never 
given  up  its  jurisdiction." 

Independent,  however,  of  the  foregoing  considerations, 
I  am  inclined  to  think  the  respondent  comes  too  late  with  an 
objection  to  the  jurisdiction  of  the  court,  he  having  answer- 
ed, and  contested  the  merits,  the  subject  matter  of  the  bill 
being  within  the  jurisdiction  of  the  court.     This  appears  to 


STATE  OF  NEW- YORK.  40 

me,  to  be  a  reasonable  rule,  and  calculated  to  save  ex-     ALBANY, 
penses.     It  is  a  good  general  principle,  that  where  a  party    i  _j-'   -V  » 
objects  to  the  jurisdiction  of  a  court,  he  ought  to  do  it  at  D-  &  G-  Ludlow 
the  earliest  opportunity.  -   I  would  not,  however,  be  under-        Simond. 
stood  to  extend  this  rule,  to  cases  where  the  subject  mat- 
ter is  not  within  the  jurisdiction  of  the  court.     Baron  GO- 
bert,  in  his  History  and  Practice  of  the  Court  of  Chancery, 
says,  page  219.  "where  the  common  law  *would  give  the  *  44 

same  relief  as  a  court  of  equity,  there,  if  the  defendant 
would  deny  the  deed,  and  demur  to  the  relief,  the  demurrer 
would  be  allowed  ;  but  if  the  defendant  doth  not  demur  to 
the  relief,  the  court  will  decree  for  the  plaintiff  on  the  hear- 
ing, alter  the  deed  is  properly  proved ;  because  the  de- 
fendant admitted  the  jurisdiction  by  answering  and  putting 
it  in  issue,  and  not  demurring."  Again,  page  51.  **  where 
a  plaintiff  goes  into  a  court  of  equity,  for  damages,  which 
are  uncertain  and  not  to  be  settled  but  by  a  jury,  the  de- 
fendant may  demur  to  the  relief  after  having  first  answered 
to  the  damages  ;  because  it  is  alieni  fori,  since  the  court 
cannot  settle  the  damages."  But  this  must  be  ante  litis 
contestationem ;  for  if  he  answers  and  contests  with  the 
plaintiff,  he  can  take  no  advantage  of  it  at  the  hearing  ;  for 
he  has  submitted  to  the  jurisdiction  of  the  court,  and  the 
court  will  not  try  at  law  the  quantum  of  damages  by  a  feign- 
ed action.  1  Vcz.  446.  I  am  therefore  of  opinion,  that  the 
objection  to  the  jurisdiction  of  the  court  was  not  well 
founded. 

But  as  the  result  of  my  opinion  is  with  the  respondent,  it 
is  of  little  moment,  as  it  respects  the  present  case,  whether 
the  appellants  have  resorted  to  the  proper  forum  for  redress 
or  not. 

The  first  question  presented,  on  this  part  of  the  case,  re- 
lates to  the  execution  of  the  contract,  on  the  part  of  the  ap- 
pellants. It  purports  to  have  been  executed  in  the  name 
of  Daniel  Ludlow  b°  Co.  being  the  name  of  a  firm,  com- 
posed of  Daniel  &?  Guiian  Ludlow.  The  signature  must 
necessarily  have  been  written  by  one  only  of  the  company, 


41  CASES  IN  ERROR  IN  THE 

ALBANY,      and  as  it  is  a  settled  rule  of  law,  that  one  partner  cannot 

leb.  isox       -fckind  his  copartner  by  seal,  it  is  contended  that  the  con- 

D.  &  G^Ludiow  tract  is  invalid.     Had  the  execution  been  by  one  of  the 

Simond         firm,  without  the  assent  of  the  other,  the  objection  might 

be  well  grounded  ;  but  from  the  testimony,  the  fact  ap- 

42  pears   otherwise.     T\vo  witnesses  testify,    that  they   saw 

Daniel  Ludlow  and  Gulian  Ludlow  execute  the  contract.  It 
is  said,  however,  that  this  testimony  is  equivocal ;  that  the 
witnesses  intended  probably  to  be  understood  that  they 
executed  it  in  the  usual  and  ordinary  mode,  in  the  course 
of  the  partnership  concerns,  by  one  only  of  the  company. 
This  inference  appears  to  me  not  warranted  by  the  lan- 
guage of  the  witnesses.  They  speak  of  the  parties  indivi- 
dually, not  as  a  company ;  and  had  not  Daniel  Ludlow  and 
Gulian  Ludlow  both  been  present,  and  assented  to  the  exe- 
cution, the  language  of  the  witnesses  doubtless  would 
have  been,  that  they  saw  the  contract  executed  by  the  one, 
who  subscribed  the  name  of  the  company.  The  interroga- 
tory part  to  the  witnesses  was,  **  did  you  or  not,  see 
Daniel  Ludlow  and  Gulian  Ludlow  execute  the  deed?" 
Taking  it  for  granted,  from  the  evidence,  that  Daniel  and 
Gulian  were  both  present,  and  assented  to  the  execution, 
and  probably  both  acknowledged  the  seal,  I  think  the  con- 
tract well  executed,  according  to  the  principles  settled  in 
Lord  Lovelace's  case,  Sir  W.  Jones,  268.  and  Ball  v.  Duns- 
tervi/le,  4  D.  &?  E.  314. 

I  shall  next  examine  the  character  which  the  respondent 
Simond  assumes  in  this  contract.  This  becomes  neces- 
sary ;  because,  from  the  whole  current  of  authorities,  it  is 
manifest,  that  where  a  party  is  charged  as  surety,  he  has 
*  43  a  right  to  avail  himself  of  a  strict  *and  literal  construction 

of  his  contract,  in  order  to  exonerate  himself  from  respon- 
sibility. 

In  examining  this  question,  we  have  principally  to  resort 
to  the  contract  itself.  In  expounding  it,  the  cardinal  rule 
is,  that  the  intention  of  the  parties  ought  to  be  sought  after, 
and   carried  into  effect,  and  to  govern  the  construction, 


STATE  OF  NEW-YORK.  43 

where,  from  the  instrument  itself,  that  intention  can  be  dis-      ALBANY, 
covered.     In  viewing  the  general  nature  and  object  of  this    >  ''  , 

contract,  and  the  parties  who  were  to  be  beneficially  in-  d.  &  6.  Ludlow 
terested  in  the  speculation,  I  can   consider  Simond  in   no        shnond. 

other  point  of  light,  than  in  the  character  of  a  mere  surety. 

It  is  the  essence  of  a  partnership  transaction,  that  each  part- 
ner should  be  entitled  to  the  gain,  as  well  as  exposed  to  the 
loss  resulting  from  the  concern.     That  was  not  the  case 
here,  for  it  is  expressly  provided,  that  if  the   proceeds  of 
the  several  shipments,  shall  exceed  the  amount  due  Daniel 
Ludlozv  &  Co.  it  shall  be  paid  to  Leremboure.     Every  fea- 
ture of  the  contract  shows,  that  Simond  was  not  concerned 
in  interest.     The  shipments  were   to  be  made  by  Lerem- 
boure.     The  notes  to  purchase  the  cargoes  were  to  be  fur- 
nished to  them.     The  sales  were  to  be  made  on  his  account 
and  at  his  risk.     The  policies   of  insurance  were  in  his 
name,  and  by  him  to  be  assigned.     The  loss,  if  any,  at  the 
winding  up  of  the  speculation,  to  be  borne  by  him  ;  for  the 
contract  expressly  states,  that  "  A.  M.   Leremboure  agrees 
to   make    good  the   deficiency  when    ascertained."      The 
mode  of  doing   it,  however,  was  by  giving  his  note,  with 
Simond's  endorsement.     The  appellants,  in  their  bill,  pray, 
"  that  the  accounts  between  them,  and  the  said  Leremboure^ 
arising  under  the   said   ^agreement,   may  be   taken    and  *  44 

stated."  Not  that  the  accounts  between  them,  and  the 
said  Leremboure  and  Simond,  might  be  taken  and  stated, 
which  would  have  been  the  prayer,  had  they  conceived 
Simond  beneficially  concerned.  In  addition  to  this,  Simondt 
in  his  answer,  under  oath,  solemnly  denies  having  any  in- 
terest in  the  contract,  and  this  is  not  contradicted,  or  in 
any  manner  rebutted,  by  the  appellants. 

Simond,  then,  being  considered  a  mere  surety,  it  be- 
comes necessary,  in  order  to  determine  his  liability,  further 
to  examine  the  contract,  and  see  what  was  to  be  done  by 
the  parties  respectively,  for  the  purpose  of  determining 
how  far  each  one  has  complied  with  his  obligation  imposed 
by  the  contract,  and  the  law  applicable  to  this  case.     There 


44  CASES  IN  ERROR  IN  THE 

ALBANY,      is  no  necessity,  however,  of  minutely  examining  all  the 
v  _J^'   -^J '     stipulations,   contained  in  the   agreement ;    no   breach   of 
D.  &  G.  Ludlow  them  is  alleged  on  either  side.     Leremboure,  on  his  part, 
Simond.        purchased  and  shipped  the  cargoes  pursuant  to  his  con- 
'     — *— —  tract .  causccl  them  to  be  insured,  and  duly  assigned  the 
policies  to  the  Ludlows.     The  Ludlows,  on  their  part,  fur- 
nished Lerembourc  with  the  means  of  purchasing  these  car- 
goes, and  consigned  the  bills  of  lading,  which  were  given 
to  them,   to  Buildemaker  £s?  Co.  their  correspondents   at 
Hamburgh,  according  to  the  stipulations  of  the  said  agree- 
ment.    But  the  principal   controversy  relates  to  the  time 
and  place  of  selling  these  shipments  ;  and  whether,  in  that 
respect,  there  has  been  any  laches  on  the  part  of  the  appel- 
lants, so  as  to  take  away  their  right  of  calling  on  the  surety 
to  make  good  the  loss.     Here  I  would  premise,  as  it  was 
made  a  topic  of  argument  by  the  counsel,  that  I  see  no 
*  45  ground  for  alleging   fraud   or  ^collusion,   either   against 

the  complainants,  or  the  respondent.  But  the  case  pre- 
sents an  honest  struggle,  to  shift  the  burthen  of  a  very 
heavy  loss. 

There  is  no  time  expressly  limited  by  the  contract,  with- 
in which  the  shipments  were  to  be  disposed  of ;  but  from 
the  other  provisions  in  the  agreement,  I  think  the  intention 
of  the  parties  in  that  respect  may  easily  be  discovered.  It 
is  fairly  to  be  presumed,  that  the  complainants  did  not  in- 
tend to  advance  cash,  for  the  purchase  of  these  cargoes ; 
but  only  to  lend  their  names  and  credit  to  Leremboure,  for 
that  purpose.  The  first  shipment  was  made  on  the  11th  of 
March,  1799.  The  notes  furnished  by  the  complainants 
of  that  date,  payable  in  six  months,  according  to  the  con- 
tract, would  fall  due  the  14th  of  September,  and  those 
payable  in  four  months,  would  fall  due  the  14th  of  July. 
The  second  shipment  was  on  the  6th  of  April,  1T99.  The 
notes  furnished  of  that  date,  payable  in  four  months,  would 
fall  due  the  9th  of  August.  The  amount  of  the  complain- 
ants' notes,  furnished  to  Leremboure,  was  36,431  dollars  88 
cents,  which  fell  due  in  the  proportion,  and  at  the  times 


STATE  OF  NEW-YORK.  45 

following,  to  wit,  2,697  dollars  99  cents,  on  the   14th  of      ALBANY, 
July;  13,733  dollars  89  cents,  on  the  9th  of  August,  and    \._^_   ' ll!_; 
20,000  dollars  on  the  14th  of  September,     According  to  the   d.  k  g.  Ludlow 
usual  course   of  a  voyage   between  Nezv-Tork  and  Ham-        simoud 

burgh,  calculating  on  a  ready  market,  the  proceeds  of  these  ■ 

shipments  would  have  been  received  in  season  to  answer 
the  complainants'  engagements.  This  is  fortified  by  the 
appellants'  own  showing,  in  the  account  current  annexed  to 
their  bill  of  complaint.  From  that  it  appears,  that  they 
must,  as  early  at  least  as  the  16th  of  July,  have  received 
the  certificate  of  the  sugar's  having  been  landed  at  *Ham-  #  46 

burgh,  which  was  necessary  to  entitle  them  to  the  draw- 
back. The  sugar  was  shipped  on  the  6th  of  April ;  from 
that  to  the  16th  of  July,  is  but  little  more  than  three 
months.  The  appellants'  notes  were  payable  at  four  and 
six  months,  making  an  allowance  for  unforeseen  delay. 
Hence  I  think  it  reasonable  to  conclude,  that  the  appel- 
lants calculated  to  meet  the  payment  of  their  notes,  with 
the  proceeds  of  these  shipments,  and  that  Simond,  the 
surety,  probably  made  the  same  calculation.  In  case 
Daniel  Ludlow  £s?  Co.  should  not  be  reimbursed  by  the 
policies  of  insurance,  they  were  authorized  to  draw  for  that 
purpose  at  sixty  days'  sight  on  London,  twenty  days  before 
their  notes  respectively  became  due.  According  to  these 
data,  the  last  draft  might  have  been  made  on  the  24th  of 
August;  the  answer  to  which,  making  very  liberal  al- 
lowances, would,  probably,  have  been  received  here  as 
early  as  December,  at  which  time  Simond  had  a  right  to 
calculate  that  the  speculation  would  have  been  wound  up, 
and  the  result  of  his  responsibility  known. 

The  contract,  I  think,  carries  stronger  internal  evidence 
with  respect  to  the  place,  than  with  respect  to  the  time  of 
sale.  There  can  be  but  little  doubt,  but  that  the  contem- 
plated place  of  sale  was  at  Hamburgh.  The  appellants 
stipulate  to  make  the  consignment  to  their  correspondent  at 
Hamburgh.  That  part  of  the  contract  providing  for  the 
deficiency,  declares,  that  M  should  the  proceeds  of  the  sale 


46  CASES  IN  ERROR  IN  THE 

ALBANY,       at  Hamburgh,  not  prove  sufficient,"  &c.     The  vessel  sailed 

v  ?'       for  Hamburgh,  and  the  insurance  was  for  the  same  place. 

D.  &  G.  Ludlow   The  last  is  a  strong  circumstance,  showing  the  understand- 

Simond.         *nS  °f  *'ie  parties,  with  respect  to  the  place  ;  because,  the 

policies  were  to  be  assigned  to  the  appellants  *as  security, 

'  which  would  altogether  have  failed,  had  a  loss  happened  af- 

ter the  vessel   left   Hamburgh,  on   a  voyage    to  another 
market. 

Another  question  for  examination  is,  the  relation  in 
which  Buildemaker  £s?  Co.  must  be  considered  as  standing  to 
the  respective  parties. 

The  object  of  the  appellants  manifestly  was,  to  have  the 
disposition  of  these  shipments,  and  the  proceeds,  completely 
under  their  control  and  management.  They  themselves 
might  be  considered  as  trustees  for  Leremboure,  with  a  lien 
upon  the  property,  for  their  advances  and  commissions. 
It  would  not,  however,  have  been  in  the  power  of  Lerem~ 
bovre  to  have  called  the  property  out  of  their  hands,  or 
counteracted  their  orders,  until  such  lien  had  been  dis- 
charged. There  is  nothing  in  the  transaction  showing  that 
Buildemaker  £s?  Co.  knew  any  other  persons  than  the  appel- 
lants, were  interested  in  the  shipments.  The  bills  of  la- 
ding were  in  their  names.  The  consignment  made  by 
them.  7  hey  to  order  with  respect  to  the  remittances  ;  and, 
in  short,  to  have  the  uncontrolled  direction  for  the  purpose 
of  reimbursing  themselves.  Under  such  circumstances,  I 
can  conceive  Buildemaker  &?  Co.  in  no  other  light  than  as 
the  immediate  agents  of  the  appellants.  It  would  be  in- 
congruous to  consider  them  the  agents  of  Lercmboure,  and 
still  he  to  have  had  no  control  over  them  ;  and  to  have  per- 
mitted him  to  have  had  any  control,  might  have  defeated  the 
Ludiorvs'  security  in  some  measure.  But  admitting  Builde- 
maker &?  Co.  to  have  b:en  the  joint  agents  of  the  appellants 
and  Leremboure,  it  cannot  affect  the  rights  of  Simond.  His 
liability  could  not  be  prolonged  or  increased  without  his 
assent. 


STATE  OF  NEW-YORK.  *48 

*In  what  respects,  then,  has  there  been  a  variance  in  the      Albany 
execution  of  this  contract,  from  what  may  reasonably  be       **^-l8°0- 
supposed  to  have  been  the   understanding  and  intention  of  D.  &  G.  Ludlow 
the  parties  ?     I  think  there  has  been  a  deviation  both  with         Simond. 
respect  to  time  and  place.     The   final  winding   up  of  the  —————— 

speculation  has  been  prolonged  from  some  time  in  Decem- 
ber, 1 799,  to  September,  1 800  ;  and  the  sales  of  the  tobacco 
were  at  Rotterdam  instead  of  Hamburgh.  The  appellants 
having  the  control  over  this  property,  in  the  characters  of 
trustees  for  Leremboure,  it  was  their  duty  to  have  made 
use  of  more  diligence  in  the  disposition  of  it  ;  or  if,  from 
a  change  of  circumstances  at  Hamburgh,  any  embarrass- 
ments were  thrown  in  the  way,  Leremboure  and  his  surety 
ought  to  have  been  apprized  of  it.  The  forbearance  of  a 
trustee,  in  not  doing  what  it  was  his  office  to  have  done, 
shall,  in  no  sort,  prejudice  the  cestui  que  trust,  since,  at 
that  rate,  it  would  be  in  the  power  of  trustees,  either  by 
not  doing,  or  by  delaying  to  do  their  duty,  to  affect  the 
rights  of  other  persons.     3  P.  Wins.  215.t     It  is  not  rea-   \  Ler.hmm    v. 

°  r  ...  EarlofCarlule. 

sonable  to  suppose  the  appellants  were  ignorant  of  the  con- 
duct of  Buildemaker  £s?  Co.  in  sending  the  tobacco  to  Rot- 
terdam. They  had  not  been  reimbursed  for  their  advances  ; 
the  proceeds  of  the  tobacco,  as  well  as  the  sugar,  were  to 
make  the  fund  to  which  they  were,  in  the  first  instance,  to 
look  for  reimbursement.  In  addition  to  this,  the  account 
current,  annexed  to  the  appellants'  bill,  shows,  I  think  con- 
clusively, that  they  must  have  been  apprized  of  it.  They 
continue  drawing,  at  different  times,  on  Buildemaker  &?  Co. 
until  the  13th  of  August,  1799.  They  then  stop,  and  no 
further  draft  is  made  until  September,  *1800.     Why  this  *  49 

delay  ?  They  were  not  reimbursed  ;  they  must  have  known 
the  fund,  first  to  be  resorted  to  for  that  purpose,  was  not 
exhausted,  or  they  would  have  called  on  Leremboure  and 
Simond  for  the  deficiency.  They  wait,  however,  for  one 
whole  year,  and  then  draw  upon  Buildemaker  &?  Co.  for 
the  proceeds  of  the  tobacco,  hy  this,  I  think,  they  affirm 
the  conduct  of  Buildemaker  &?  Co.  in  sending  the  tobacco 


D.  &  G.  Ludlow 
v. 

Simond. 


49  CASES  IN  ERROR  IN  THE 

ALBANY,  to  Rotterdam,  if  it  was  unauthorized  in  the  first  instance. 
Willes,  407.  It  is  unnecessary  here  to  say,  what  ought  to 
be  the  decision  as  between  Lttdlows  and  Buildemaker  &  Co. 
or  between  Ludloxvs  and  Leremboure.  It  appears  to  me, 
however,  to  be  allowing  agents  a  very  considerable  latitude 
of  discretion  to  justify  so  material  an  alteration  of  the  des- 
tination of  a  cargo,  as  from  Hamburgh  to  Rotterdam; 
from  a  neutral  to  a  belligerent  port.  Yet,  where  agents  act 
in  good  faith,  a  very  liberal  construction  ought  to  be  given 
to  their  conduct.  Very  different  rules  prevail  when  the 
rights  of  sureties  are  involved  ;  as  against  a  surety  the  con- 
tract cannot  be  carried  beyond  the  strict  letter  of  it.  2  D. 
&f  E.  370.  A  party  cannot  oblige  a  surety  to  remain  such, 
contrary  to  his  consent,  longer  than  the  time  first  bargained 
for.  2  Bro.  Ch.  Rep.  582,  583.  Delay  granted  to  the 
principal  will  discharge  the  surety.  2  Ves.  jun.  542.  The 
engagement  of  Simond  was  definite,  to  wit,  to  endorse 
LcrembourJs  note  for  the  deficiency  of  the  proceeds  of  the 
shipments  to  reimburse  Ludloxvs.  This  deficiency,  how- 
ever, to  be  ascertained,  in  the  manner  and  within  the  time 
prescribed  by  the  contract.  This  Simond  had  a  right  to  de- 
mand. In  the  case  of  Wright  v.  Russel,  3  Wils.  359.  the 
*  50  court  *said,  "  a  surety  ought  not  to  be  bound  beyond  the 

scope  of  his  engagement.  That  courts  of  equity  are  fa- 
vourable to  sureties  ;  for,  where  they  are  not  strictly  bound 
at  law,  a  court  of  equity  will  not  bind  them."  This  doc- 
trine was  recognised,  and  very  much  approved  of,  by  Lord 
Kenyan,  in  the  case  of  Myers  v.  Edge,  7  D.  &?  E.  256. 
Where  any  act  has  been  done  by  the  obligee,  that  may  in- 
jure the  surety,  equity  will  discharge  him  from  his  liability. 
4  Ves.  jun.  833.  In  the  present  case,  the  appellants,  by  pro- 
longing the  winding  up  of  this  contract,  exposed  the  surety 
to  greater  hazards,  among  which  the  insolvency  of  Lereni- 
boure  was  no  inconsiderable  one,  as  the  result  has  shown. 
The  case  of  Simpson  and  Field,  2  Ch.  Ca.  22.  is  a  strong 
one  to  show  the  rigid  construction  adopted  by  courts  to 
protect  sureties,  and  also  that  equity  will  not  bind  them 

3 


STATE  OF  NEW-YORK.  50 

farther  than  they  would  be  bound  at  law.     The  case  was      ALBANY, 
shortly  as  follows  :  the  defendant  was  bound,  as  surety,  in     *_»-'    -<1/ 
a  recognisance  conditioned  to  pay  what  should  be  reported  D-  &  G-  Lutllow 
by  A7".  H.  a  master  named  in  the  condition.     The  master        Simond. 
died  before  the  report  was  made,  and,  by  the  strict  letter 
of  the  condition,  the  defendant  was  not  suable  at  law,  be- 
cause the  report  was  not  made  by  the  master  named,  but  by 
another.     The  Lord  Chancellor  dismissed  the  bill,  saying, 
the  party  is  but  a  surety,  and  not  bound  at  law.     The  same 
principle  we   find  recognised  in  the  cases  of  Ratcliff  v. 
James,    1    Vern.  196.   and  Sheffield  v.   Lord  Castletcn,  2 
Vern.  393.  and  numerous  others  that  might  be  cited. 

If  the  view  which  I  have  taken  of  the  contract  be  cor- 
rect, and  the  deduction  made  be  warranted  by  the  case, 
the  respondent  stands  protected  by  a  host  of  authorities. 
^However  honest  and  upright  the  conduct  of  the  appellants  #  $\ 

may  have  been,  they  are  chargeable  with  such  a  deviation 
from  the  contract,  and  such  a  want  of  due  diligence  in 
winding  up  the  speculation,  as  will,  in  judgment  of  law, 
exonerate  the  surety.  I  am,  therefore,  af  opinion,  thnt 
the  decree  of  the  court  of  chancery  ought  to  be  affirmed. 

Kent,  Ch.  J.  In  the  discussion  of  this  cause,  two 
leading  questions  have  been  raised,  both  of  which  have 
been  very  elaborately  and  ably  considered  by  counsel.  The 
one  question  relates  to  the  mode  of  seeking  redress,  and 
the  other  to  the  merits  of  the  controversy.  It  is  necessary 
that  I  should  give  each  of  them  an  examination,  and  this  I 
shall  do  in  the  order  in  which  they  are  stated. 

The  first  question  then  is,  whether  the  court  below  had 
jurisdiction  of  the  cause  ? 

I  incline  to  the  opinion,  that  the  court  had  jurisdiction  ; 
1st.  Because  matters  of  account  were  involved ;  2d.  Be- 
cause the  remedy,  at  law,  was,  at  least,  doubtful ;  3d.  Be- 
cause the  defendant,  instead  of  demurring  to  the  bill,  sub- 
mitted to  the  jurisdiction  by  putting  in  an  answer  to  the 
merits. 


51  CASES  IN  ERROR  IN  THE 

ALBANY,  The  bill  stated,  at  large,  the  contract  between  the  ap- 

pellants and  Leremboure  and  Simond,  and  the  history  of  the 


D.  k  G.  Ludlow  commercial  adventure  which  arose  out  of  that  contract.    It 
Simond        thtn  stated,  that  a  considerable  loss  happened  on  the  sales 

abroad,  and  that  the  accounts,  relative  to  the  transaction, 

were  presented  to  Leremboure,  who  acknowledged  them  to 
be  just,  but  refused  to  give  his  note  as  stipulated  by  the 
agreement,  and  that  both  he  and  Simond  refused  to  pay  to 
the  appellants  the  balance  due  them  on  the  contract.  The 
^*  bill  ^further  stated,    that   difficulties  would   attend   their 

proceeding  at  law,  and  prayed  that  the  accounts  respecting 
the  transaction  might  be  taken  and  stated,  and  the  balance 
paid. 

These  accounts  embraced  the  whole  process  of  the  ad- 
venture, from   its  commencement   to   its  conclusion,  and, 
consequently,  consisted  of  a  variety  of  charges  and  credits. 
As,  then,  one  material  part  of  the  cause  depended  on  a 
settlement  of  accounts,  I  think  it  came  properly  within  the 
cognisance  of  the  court.     Chancery  has  a  concurrent  juris- 
diction with  the  courts  of  law   in  all  matters   of  account. 
Whether  this  jurisdiction  originally  arose  from  the  necessi- 
ty of  obtaining   a  discovery  by  the  oath  of  the  defendant, 
or,  in  order  to  prevent  a  multiplicity  of  suits,  is,  perhaps, 
not  now  material  to  inquire,  since  it  has  become  well  esta- 
blished in  cases  where  that  necessity  does  not  exist,  and 
where  no  difficulty  would  attend  the  remedy  at  law.     Mitjl 
Treatise,    109,  110,  111.     3  Black.  C'omm.  437.     The  cog- 
nisance of  all  causes  that  lie  in  account,  does,  undoubtedly, 
give  a  very  broad  jurisdiction  to  the  court  of  chancery,  but 
the  exercise  of  this  jurisdiction  has  been  found  in  practice 
so  convenient  and  salutary,  that  it  has  long  since,  by  ge- 
neral consent,  rendered  obsolete  the  common  law  remedy 
by  a  writ  of  account ;  and,  although  our  statute  prescribes 
minutely  the   mode   of  proceeding  by  that  writ,  I  doubt 
'       whether  there  ever  was  an  instance  of  such  an  action  hav- 
ing been  prosecuted  to  effect  in  this  state.     The  settlement 
of  accounts,  if  they  are  in  any  degree  long  or  complex,  is 


STATE  OF  NEW-YORK.  $> 

improper,  if  not  impracticable  for  a  jury.     The  statute,      ALBANY, 
therefore,  in  the  writ  of  account,  provides,  that  the   ac-     L  ^jr     nul' 
counts  shall  be  ^submitted  to  auditors  :  and,  indeed,  when  D  &  G-  Ludlow 

V. 

questions  of  account  arise  at  law,  in  the  common  action  of        Simond. 
assumpsit,  they  are    pretty  generally   taken    from  a  jury,  ""  *  53 

and  submitted  by  the  court  to  referees,  which  the  courts 
are  authorized  to  do,  with  or  without  the  consent  of  the 
parties. 

I  know  not  of  any  rule  limiting  the  cognisance  of  the 
court  of  chancery  to  one  species  of  accounts  more  than  an- 
other ;  or  to  matters  of  accounts  against  persons  in  any  par- 
ticular relation.  Its  jurisdiction  extends  to  all  matters  of 
account  between  individuals,  in  whatever  relation  they  may 
stand  to  each  other.  In  this  it  has  no  more  than  a  concur- 
rent jurisdiction  with  the  courts  of  law  ;  for  the  writ  of  ac- 
count at  law,  is  given  by  our  statute,  1  Rev.  Laws,  94.  in  all 
cases  where  one  person  is  liable  to  account  to  another  as 
guardian,  bailiff,  receiver,  or  otherwise,  and  this  renders 
the  writ  more  extensive  than  it  was  under  the  English  law. 

But  it  wa3  objected  upon  the  argument,  that  the  appel- 
lants were  in  the  light  of  factors  or  trustees  coming  into 
court  to  have  their  own  accounts  stated,  and  allowed  against 
their  principal.  This,  however,  they  may  well  do.  In  bills 
to  account,  both  parties  are  considered  as  actors,  or  plain- 
tiffs, and  the  defendant  has  the  same  advantage  as  if  he  had 
himself  instituted  the  suit.  Dane's  case,  1  P.  Wms.  2fl3. 
Kent  v.  Kent,  Prec.  in  Ch.  197.  A  trustee  may  go  into 
chancery  to  have  an  allowance  made  against  his  cestui  que 
trust,  out  of  trust  moneys  in  his  hands.  Of  this  we  have  an 
instance  in  the  case  of  Gould  v.  Fleetwood,  3  P.  Wms.  251. 
n.  (A).  Guardians  of  great  estates  in  England,  are  said  to 
pass  their  accounts  yearly  in  the  court  of  chancery,  and  this 
is  recommended  *in  IVood^s  Inst.  73.  as  a  safe  way  to  justify  *  54 

themselves,  when  the  minor,  at  full  age,  shall  call  them  to 
a  general  account. 


54 


CASES  IN  ERROR  IN  THE 


ALBANY, 
Feb.  1805. 


Nor  is  it  necessary  that  the  responsibility  of  the  defend- 
ant should  be  established  before  you  can  file  a  bill  for  an  ac- 
J.  &  G.  Ludlow  count.     In  most  cases  that  responsibility,  as  well  as  the  stating 
Simon.1.        °f  the  account,  will  be  a  point  for  litigation.     It  is  sufficient 

'■ that  the  cause  will  involve  an  account  in  case  of  the  liability 

of  the  defendant.  Both  questions  must  be  more  or  less 
connected  together  in  every  case ;  especially  as  to  the  ex- 
tent of  the  engagement,  and  how  far  it  will  apply,  in  particu- 
lar instances. 

If  was  said,  however,  that  there  were  no  accounts  to 
state  and  settle  in  this  cause,  for  the  bill  charges  that  Lerem- 
boure had  admitted  the  accounts  to  be  just.  But  the  an- 
swer of  Leremboure  declares,  he  admitted  them  no  further 
than  as  to  the  correctness  of  the  calculations  ;  and  if  he  had, 
his  admissions  could  not  have  concluded  Simond,  who 
would  be  entitled  to  have  the  accounts  reliquidated,  and  the 
deficiency  stated,  before  the  court  would  oblige  him  to  per- 
form his  part  of  the  contract. 

For  these  reasons,  I  think  the  suit  below  was  properly  in- 
stituted, and  I  should  regret  exceedingly,  that  any  opinion 
which  might  be  given  by  this  court,  should  tend  to  embar- 
rass the  benign  and  well  settled  jurisdiction  of  chancery,  in 
the  unlimited  cognisance  of  acccounts. 

Another  ground  upon  which  the  bill  might  be  sustainable 
is,  that  the  remedy  at  law  was,  at  least,  doubtful.  This  has 
been  repeatedly  held  as  sufficient  to  give  the  court  of  chan- 
cery jurisdiction.  Bdlonv.  Hyde,  1  Atk.  128.  1  Fez.  331. 
Burrorvs  v.Jemimo.  *2  Stra.  733.  1  tf&.jun.  424.  f  The 
fiVeymouth  v.  contract  js  susceptible  of  two  constructions,  upon  one  of 
which  there  was  clearly  no  remedy  at  law.  If  we  take  the 
contract  according  to  its  grammatical  construction,  Simpnd 
was  bound  only  to  endorse  the  note  that  Leremboure  should 
give  for  the  deficiency,  and  the  giving  the  note  was  a  con- 
dition precedent  to  the  obligation  of  Simond.  It  may  be 
said,  however,  and  that  too  with  great  force  of  argument, 
that  unless  Simond  was  bound  that  Leremboure  should  give 
the  note,  as  well  as  that  he  should  endorse  it,  the  security 


*  55 


STATE  OF  NEW- YORK.  J* 

intended  by  the  contract,  would  in  a  great  degree  vanish.      ALBANY, 
If  we  assume  the  first  construction,  there  would  be  no  re-     ,J^.'^/ 
medy  for  the  appellants,  without  the  aid  of  the  court  of  «•  «*  G^L«dtew 
chancery,  for  a  suit  at  law  would  not  lie  for  not  endorsing  a        Si,""1:d 
note  which  was  never  drawn.     In  such   a  case,  the  assist- 
ance of  chancery  would  become  essential,   to  compel  the 
making  of  the  note,  or  to  reach  the  case  of  fraud  or  collu- 
sion between  Leremboure  and  Simond,  in  not  giving  the  note. 
The  uncertainty,  therefore,  and  the  difficulty  of  an  adequate 
legal    remedy,  was  a   sufficient  reason  for  sustaining  the 

bill. 

It  may  be  also  a  matter  of  doubt  whether  the  contract 
was  valid  in  its  execution,  as  a  sealed  instrument  or  spe- 
cialty The  proof  indeed  is,  that  the  witnesses  saw  the  ap- 
pellants execute  the  contract,  and  if  we  are  to  understand 
them  as  meaning  that  both  the  appellants  were  actually  pre- 
sent, and  united  in  executing  it,  it  was  a  good  execution  ; 
for  several  persons  may  enter  into  an  obligation  and  bind 
themselves  by  one  seal.  Lord  Lovelace's  case,  Sir  W.  Jones, 
268.  Ball  v.  Dunsterville,  4  D.  &  E.  313.  But  it  may  be 
well   doubted    whether   the   witnesses    *meant  any   thing  #  56 

more  than  that  the  appellants  executed  the  deed,  in  the 
usual  mercantile  way,  by  one  of  them  doing  it  in  the  name 
of  the  firm;  for  the  appellants  state  in  their  bill,  that  they, 
or  one  of  them,  executed  it,  and  that  they  supposed  such 
execution  to  be  unexceptionable.  If  the  fact  really  was, 
that  only  one  of  the  appellants  executed  the  contract,  it  was 
not  a  good  execution  at  law,  and  it  was  necessary  to  re- 
sort to  equity,  to  try  how  far  that  informality  in  ihe  execu- 
tion might  be  corrected,  as  it  was  clearly  founded  in  mis- 
take. Sheffield  v.  Lord  Castleton  and  ivife,  2  Vern.  393. 
Chancery  would  not  help  a  defective  execution  of  a  contract 
against  a  surety.  Crosby  v.  Middleton,  3  Clu  Rep.  53.  and 
Free.  Chan.  309.  contra,  from  whence,  in  1  Fonb.  37.  the 
point  is  considered  as  doubtful. 


56  CASES  IN  ERROR  IN  THE 

ALBANY,  But  admitting  these  grounds  not  to  have  been  sufficient, 

^  Feb.  iso5^    jn  t^e  ^rst  jnstance^  to  have  sustained  the  bill,  the  respond- 
a  &  G  Ludlow  ent  came  too  late  to  object  to  the  jurisdiction  of  the  court, 
Simond.        after  he  had  put  in  his  answer  to  the  merits  of  the  cause. 
*"""  By  answering  in  chief,  instead  of  demurring,  he  submitted 

his  defence  to  the  cognisance  of  the  court ;  and  equity  will, 
and  ought,  in  such  cases,  to  retain  the  cause,  provided  the 
court  be  competent  to  grant  relief,  and  has  jurisdiction  of 
the  subject  matter,  as  it  manifestly  had  in  this  case,  the  con- 
troversy being  upon  a  matter  of  personal  contract,  and  of 
account.  Billon  v.  Hyde,  1  Atk.  128.  1  Fez.  331.  3  Bro. 
Pa.  Cas.  525.  Mitford,  passim.  Gilbert's  Treatise  on  Chan. 
51 — 53.  219,  220,  221.  Penny.  Lord  Baltimore,  1  Fez.  446, 
447.  This  last  reason  why  the  cause  was  sustainable  in  the 
court  below,  appears  to  me  to  be  supported  on  the  firmest 
basis,  both  from  the  reason  of  the  thing,  and  the  weight  of 
authorities. 
*  57  *Having  thus  disposed  of  these  preliminary  or  technical 

questions,  as  to  the  jurisdiction  of  the  court,  I  proceed, 
secondly,  to  examine  the  merits  of  the  case. 

To  perceive  that  Simo7id  had  no  beneficial. interest  in  the 
concern,  and  was  but  a  mere  naked  surety  for  the  per- 
formance of  a  specific  act,  requires  only  a  bare  perusal  of 
the  contract.  The  formal  beginning  and  conclusion  of  the 
contract,  do,  indeed,  seem  to  carry  the  agreement  of  the 
parties  to  the  whole  instrument ;  but  we  must  examine  the 
body  and  the  scope  of  the  agreement,  to  judge  of  its  mean- 
ing and  effect.  On  doing  this,  we  shall  immediately  per- 
ceive, that  the  agreement  of  each  party  is  to  have  reference 
only  to  such  particular  parts  of  the  contract,  as  apply  to 
him ;  reddendo  singula,  singulis ;  and  as  Simond  was  only 
a  surety,  it  becomes  important  to  consider  and  understand 
well,  the  principles  of  law,  which  are  applicable  to  him  in 
that  character. 

It  is  a  well  settled  rule,  both  at  law  and  in  equity,  that 
a  surety  is  not  to  be  held  beyond  the  precise  terms  of  his 
contract,  and,  except  in  certain  cases  of  accident,  mistake, 


STATE  OF  NEW-YORK.  5r 

or  fraud,  a  court  of  equity  will  never  lend  its  aid  to  fix  a      ALBANY, 

7  l       *  k  eb.  18(15. 

surety  beyond  what  he  is  fairly  bound  to,  at  law.     Under-    v^-^^j 
wood  v.  Staney,  1   Ch.Ca.77.  1    Eq.  Ahr.  93.  K.pl.2.6.  MttWN 
Skip  v.  Huey,  3  Atk.  91.  Cm%  v.  Middkton,  Prec.  Ch.        Simond. 
309.  are  cases  where  chancery  has  said  it  would  fix  a  surety  " 
for  mistake  or   fraud.     Wright  v.  Russel,    3    Wils.   530. 
Lord  Arlington  v.  Merricke,  2  Saund.  411.  Myers  v.  Edge, 
7  D.&  E.  254.  St  ration  v.  ifasta//,  2i).^£.  3K>.  Simp- 
son  v.  JF7e/</,    2  Ch.  Ca.  22.    Ratclife  v.  Gratw,    1  Firm. 
196.    JVJ*Art  v.  Smith,  2  J5r<?.  C%.  Rep.  579.     Rees  v.  £«•- 
rington,  2  F^.  jun.  540.      Law  v.  £.  Ak  *67c^.  4   T«.  *  5« 

jun.  833.  are  all  cases  in  favour  of  sureties.     This  rule  is 
founded  on  the  most  cogent  and  salutary  principles  of  pub- 
lic policy   and  justice.     In  the  complicated  transactions  of 
civil  life,  the  aid  of  one  friend  to  another,  in  the  character 
«f  surety  or  bail,  becomes  requisite  at  every  step.     With- 
©ut  these  constant  acts  of  mutual  kindness  and   assistance, 
the  course  of  business  and  commerce  would  be  prodigious- 
ly impeded  and  disturbed.     It  becomes,  then,  excessively- 
important  to  have  the  rule  established,  that  a  surety  is  never 
to  be  implicated,  beyond  his  specific  engagement.     Calcu- 
lating upon  the  exact  extent  of  that  engagement,  and  hav- 
ing no  interest  or  concern  in  the  subject  matter  for  which 
he  is  surety,  he  is  not  to  be  supposed  to  bestow  his  attention 
to  the  transaction,  and  is  only  to  be  prepared  to  meet  the 
contingency,  when  it  shall  arise,  in  the  time  and  mode 
prescribed  by  his  contract.     The  creditor  has  no  right  to 
increase   his  risk,  without  his  consent ;  and  cannot,  there- 
fore, vary  the   original  contract,  for  that  might  vary  the 

risk. 

In  the  present  case,  the  respondent  agrees  to  endorse  a 
note  for  Lerembmre;  but  that  note  was  only  to  be  required 
upon  the  happening  of  a  certain  event.  It  was  not  any 
note  that  was  to  be  given  and  endorsed  ;  but  it  was  a  note 
to  arise  on  the  deficiency  of  the  proceeds  of  certain  sales  at 
Hamburgh,  and  it  was  to  be  given  to  complete  a  reimburse- 
ment, which  the  appellants  were  first  to  seek  for.  by  other 


58  CASES  IN  ERROR  IN  THE 

ALBANY,      ways  and  means,  precisely  defined.     The  contract  provid- 
ed, with  a  studied  minuteness,  the  several  mode  s  by  which 


D.  &  G.Ludlow  the  appellants  were  to  seek  a  reimbursement.  They  were 
Simond.        nrst  to  resort  to  tne  policies  of  insurance,  *made  to  cover 

——————  the  shipments  to  Hamburgh,  and  which  polities  were  to  be 

assigned  to  them.  But  this  means  could  only  be  resorted 
to  in  case  of  loss  on  the  voyage  ;  and  there  was  no  such 
loss,  for  the  goods  arrived  sale  at  the  port  of  destination. 
"Should  this  mode  of  reimbursement  not  take  pi. tee,"  (to 
use  the  words  of  the  contract,)  the  appellants  were  then 
authorized  to  draw,  at  sixty  days*  sight,  on  London^  and 
that  too,  twenty  days  before  their  notes  respectively  be- 
came due,  and  to  order  the  necessary  remittances  to  be 
made  by  Buildemaker  &?  Co.  to  meet  their  drafts.  These 
drafts  and  orders  were,  of  course,  then,  all  to  be  made 
and  completed  by  the  22d  of  August,  1799,  which  would 
be  twenty  days  before  the  last  of  the  notes  became  due; 
and,  allowing  the  ordinary  passage  to  London,  the  payment 
of  the  last  bills  there,  would  have  been  to  be  made  by  the 
1st  of  December,  1799.  This  was  the  second  mode  of  re- 
imbursement, provided  for  by  the  contract.  But  should 
the  proceeds  of  the  sales  at  Hamburgh,  "  so  disposed  of," 
to  again  adopt  the  terms  of  the  contract,  not  prove  suffi- 
cient to  reimburse  the  appellants,  Leremboure  was  to  make 
good  the  deficiency,  as  soon  as  ascertained,  by  a  note  at 
sixty  davs,  to  be  endorsed  by  Simond.  This  was  the  last 
and  final  mode  of  reimbursement,  and  upon  which  the  pre- 
sent controversy  has  arisen.  The  returns  from  London,  of 
the  result  of  the  proceeds  of  the  sales  at  Hamburgh,  "  so 
disposed  of,"  would  have  arrived  at  New-York,  in  the  or- 
dinary course  of  transmission,  by  the  middle  of  January, 
1800,  and  this  was  the  ultimate  time  which  resulted  from 
the  terms  of  the  contract,  for  the  completion  of  the  specu- 
lation, and  which  was  to  determine  the  extent  of  the  re- 
sponsibility of  Simond.  The  calculation,  as  to  the  time  when 

*  6@  Simond  *was  to  be  ultimately  called   upon,  is  to  be  dedu- 

ced from  the  contract,  with  almost  as  much  precision  and 


STATE  OF  NEW-YORK.  6& 

certainty,  as   if    the  contract  had   expressly    fixed    it    at     ALBANY, 

^  Feb.  1805. 

January,  1800.  v^^^y-v^/ 

The  property  in  question  was   intended  to   answer  the  d.  k  G.  Ludlow 
bills  on  London,  and  reimburse   the   appellants.     The   re-        simond. 
mittances,  therefore,  were  to  be  made  from  Hamburgh  by  — — 
a  certain  time,  because  they  were  to  meet  a  precise  object. 
Both  the  appellants  and  Leremboure  must  have  contem- 
plated the  sales  at  Hamburgh  to  be  made  in  the  summer 
of  1799,  in  order  to  guard  against  the   immense  loss  in 
damages  that  might  result,  if  the  remittances  were  not  met 
in  London,  by  the  1st  of  December,  1799,  to  save  the  bills 
from  being  protested. 

The  place  of  sale  was  clearly  designated  by  the  contract. 
The  property  was  to  be  consigned  to  Buildemaker  &?  Co.  at 
Hamburgh,  to  be  sold.  The  property  was  insured  for 
Hamburgh.  The  appellants  to  order  the  remittances  to  be 
made  by  Buildemaker  fc?  Co.  to  London,  and  these  orders 
were  all  to  be  issued  by  the  22d  of  August,  1799.  The 
remittances  were  to  be  made  at  the  risk  of  Leremboure,  and 
the  contract  further  adds,  that,  should  the  proceeds  of  the 
sales  at  Hamburgh  be  insufficient,  &c.  There  was  no 
cover  provided  for  risk  in  transmitting  the  property  to  any 
other  place.  The  ultimate  hazard  was  to  terminate  there. 
From  all  these  facts  and  circumstances,  I  consider  the  in- 
tent of  the  contract  to  be  unequivocal  and  certain,  that  the 
property  was  to  be  disposed  of  at  Hamburgh.  A  place  of 
sale  intended  by  a  contract,  is  equivalent  to  a  place  of  sale 
stipulated  by  a  contract.  What,  indeed,  are  stipulations  in 
*agrc  ements,  if  they  are  not  acts  intended  and  contemplated  61 

by  the  parties  ? 

This  being  the  contract,  let  us  next  see  with  what  preci- 
sion it  was  executed.  Instead  of  winding  up  the  speculation, 
and  ascertaining  the  deficiency,  in  January,  1800,  it  was  not 
done  till  October,  1800;  and  instead  of  having  the  tobacco 
sold  at  Hamburgh,  in  the  summer  of  1799,  by  Buildemaker 
fc?  Co.  it  was  sent  over  land,  a  distance  of  near  250  miles, 
to  Rotterdam;  most  of  it  not  sold  till  Juljj,  1800,  and  that 


til  CASES  IN  ERROR  IN  THE 

too   by   a   different    house,   Roquette   Buildemaker  &*  C§i 
What  reasons  are  given  for  this  wide  departure  from  the 

D. &  G.  Ludlow  terms  of  the  contract?  It  is  stated  and  admitted,  that,  pre- 
Simond.         vious  to  the  arrival  of  the  cargoes  at  Hamburgh,  and  which 

-  must  have  been  early   in  June,  1T99,  many  failures  had 

happened  among  the  principal  traders  there,  but  the  effect 
that  this  calamity  had  upon  the  market  or  the  price,  is  not 
ascertained,  and  we  are  left  altogether  to  conjecture.  There 
is  no  testimony  as  to  the  price  of  tobacco  there,  during  the 
summer.  It  is  only  proven,  that  from  the  month  of  October 
to  the  end  of  the  year,  the  price  of  Virginia  tobacco  was 
from  3s.  3d.  to  4.s.  Hamburgh  currency,  per  lb.  and  so  con- 
tinued in  1800;  while,  for  the  same  period,  the  price  of 
Maryland  tobacco  was  considerably  higher.  I  am  willing 
to  admit,  that  Buildemaker  &?  Co.  might  have  sent  the 
goods  to  a  different  market  in  cases  of  necessity ;  such  as 
those  resulting  from  fire,  pestilence,  or  the  invasion  of  an 
enemy.  But  this  necessity  must  be  clearly  made  out,  and 
a  strong  case  shown  to  justify  a  factor  in  changing  the 
place  of  sale,  and  the  agents  who  are  to  conduct  it.     He,  by 

*  62  this,  exposes  the  property  to  unforeseen  *accidents,  and,  per- 

haps, disconcerts  all  the  arrangements  of  his  principal.  No 
sufficient  cause  appears,  in  the  present  case,  for  the  conduct 
of  the  agents.  Notwithstanding  these  mercantile  failures, 
there  was  no  complaint  of  a  want  of  market  or  price,  as  to 
the  sugars ;  and  it  ought  not  to  have  been  left  to  inference 
only,  but  it  should  have  been  made  affirmatively  to  appear, 
that  the  tobacco  could  not  have  been  sold  during  the  sum- 
mer of  1T99.  If  to  seek  a  better  market  was  discreet,  was 
it  requisite  to  go  so  far  as  Rotterdam,  and  pass  by  many 
large  commercial  neutral  sea-ports  and  cities,  that  were 
much  nearer?  But  this  was  not  all.  The  property  was 
changed  from  a  neutral  to  a  belligerent  port,  at  the  very 
time  too,  when  Holland  was  perishing  under  the  rapacity  of 
French  armies,  and  the  scourge  of  the  Russian  and  British 
invasion.  This  was  exposing  the  property  to  a  new,  extra- 
ordinary, and,  in  my  opinion,  a  most  unwarrantable  hazard. 


STATE  OF  NEW-YORK. 

In  addition  to  the  usual  perils  of  a  long  transportation,  and     Albany, 

...  c  *'eb.  ISuo. 

new  agents,  it  was  exposing  it  to  the  very  extremity  ot  war 


risks.  D.  St  G.  Ludlow 

Admitting,  which  I  am  willing  to  do,  that  Buildemaker  fcf  Siaiwi. 
Co.  acted  *  ith  good  faith  in  this  transaction,  and  that  the  —  — — 
appellants  never  gave  any  directions  as  to  the  change  of  the 
place  of  sale  ;  have  not  the  latter  done  what,  in  judgment  oi 
law,  is  equivalent  thereto  ?  It  was  a  point  very  much  liti- 
gated upon  the  argument,  whether  Buildemaker  £>  Co.  were 
the  exclusive  agents  of  the  appellants,  <5r  only  the  concur- 
rent agents  of  them  and  Leremkoure.  It  does  not  appear 
to  me,  to.  be  very  material  to  determine  this  question, 
either  one  way  or  the  other ;  for,  it  is  sufficient  they  were 
not  the  agents  of  Simond.     He  had  %io  agency  or  beneficial  #  53 

concern  in  the  shipment,  and  no  agreement,  even  between 
the  appellants  and  Leremboure,  to  send  the  property  to  Rot- 
terdam, could  have  bound  him.  The  contract,  as  to  him, 
could  not  have  been  varied  without  his  consent.  But,  I 
think,  it  results  from  the  case,  that  the  appellants  have  made 
the  act  of  Buildemaker  &?  Co.  their  own.  They  were  to 
draw  bills  on  London,  in  the  summer  of  1799,  and  to  order  * 
the  proceeds  of  the  Hamburgh  sales  to  be  remitted  there. 
In  this  mode,  and  at  this  time,  they  were  to  seek  a  reim- 
bursement, and  it  appears,  from  the  account  annexed  to  the 
bill,  that,  during  that  summer,  they  drew  on  their  agents  for 
30,777  dollars  90  cents.  It  is  to  be  presumed,  that  they 
were  apprized  very  early  of  the  determination  of  their  agents 
to  send  the  goods  to  Rotterdam  ,•  for,  after  the  13th  of  Au- 
gust, 1799,  they  discontinued  their  drafts,  and,  from  that 
time,  they  remained  perfectly  silent  and  passive,  waiting 
for  the  returns  of  the  Rotterdam  sales,  until  the  18th  of 
September,  1800,  when  they  receive  and  credit  Leremboure 
with  the  amount  of  them,  and  then,  for  the  first  time,  call 
on  him  for  the  deficiency.  This  conduct  amounted  to  an 
affirmance  of  the  acts  of  Buildemaker  &?  Co. ;  lor,  if  an 
agent  steps  beyond  his  authority,  the  principal  may,  at  his 
election,  and  as  best  suits  his  convenience,   either  lonsider 

Bh 


63  CASES  IN  ERROR  IN  THE 

Albany,      him  as  a  wrongdoer,  or  he  may  affirm  his  act,  and  consider 
him  as  a  receiver  of  money  for  his  use.    Willes's  Rep.  407. 


D.  k,  G.  Ludlow  This  latter  course  the  appellants  thought  proper  to  pursue, 

Simond.        and,  therefore,  the  sound,  well  known  rule  of  law  applies  to 

— — — — —  them,  that  the  subsequent  affirmance,  by  the  principal,  of  the 

unauthorized  act  of  the  agent,  is  equivalent  to   an  original 

*  64  order.     This  ^conclusion  appears  to  me  to  result  necessarily 

from  the  facts.  Buildemaker  &  Co.  were,  generally,  speak- 
ing, the  exclusive  agents  of  the  appellants,  in  respect  to  this 
mercantile  adventure,  though,  perhaps,  under  certain  cir- 
cumstances, Leremboure,  the  cestui  que  trust,  might  have 
interfered.  But  it  is  not  requisite,  in  the  view  which  I 
take  of  the  subject,  to  maintain  absolutely  this  exclusive 
agency.  It  is  sufficient  to  say,  that  the  transaction  wa;> 
so  conducted,  that  Buildemaker  £s?  Co.  became,  in  fact,  the 
actual  and  effectual  agents  of  the  appellants,  and  being  so, 
the  appellants  not  only,  in  the  first  instance,  directed,  but 
in  the  last  instance,  affirmed  their  conduct,  by  a  strict  ac- 
quiescence, for  one  year,  in  the  sending  of  the  goods  to  Rot- 
terdam,  and  then  by  expressly  receiving,  at  their  hands,  the 
*  proceeds  of  the  Rotterdam  sales.  If  the  appellants  intended 
to  have  pursued  strictly  the  course  of  their  contract,  they 
ought,  so  soon  as  they  were  informed  that  the  tobacco  was 
sent  off,  and  that  the  proceeds  of  the  Hamburgh  sales  were 
insufficient,  to  have  then  called  on  Leremboure  with  the  as« 
certained  deficiency,  demanded  their  note,  and  left  him  to 
have  pursued,  at  his  own  risk,  the  property,  or  the  agent 
who  had  misused  it.  They  would  then  have  been  entitled 
to  their  note,  endorsed  by  Simond,  for  the  deficiency,  how- 
ever great  it  might  have  been.  It  is  their  sanction  of  the 
conduct  of  Buildemaker  &  Co.  that  makes  it  their  own. 
By  that  means  they  have  so  essentially  varied  the  terms 
of  the  contract,  that  the  surety  is  no  longer  holden. 

The  case  would  not  be  altered,  were  it  really  true  (of 
which,  however,  we  have  not  the  requisite  proof)  that  the 

*  q5  sending  the  tobacco  to  Rotterdam  produced  *a  better  price. 


STATE  OF  NEW-YORK.  65 

This  would  be  a  mere  accidental  result.     It  might  have      ALBANY, 
been  otherwise.     But  it  i3  the  prmciple  in  the  transaction, 


the  variation  of  the  contract,  that  discharges  the  surety.  D.  &  g.  Ludlow 
This  principle  is  stable  and  uniform,  not  depending  upon  Staoad. 
the  fluctuations  of  markets.  Nor  will  it  do  to  say,  that 
Simond  shall  have  credit  according  to  the  best  price  at  Ham- 
burgh in  1 799,  and  be  holden  only  for  the  deficiency.  The 
principle  that  releases  a  surety,  under  such  circumstances, 
is  not  to  be  modified  by  such  a  concession.  It  appears  that 
Leremboure  was  insolvent  in  October,  1800;  but  how  long 
antecedently  he  had  been  so,  does  not  appear.  If  the  con- 
tract had  been  strictly  pursued,  it  is  possible  that  the  surety 
might  have  indemnified  himself,  as  early  as  the  beginning 
of  the  year  1800.  The  variation  of  the  contract  may  have 
thrown  him  off  his  guard,  and  prevented  him  from  holding 
fast  any  fund  in  his  possession,  or  from  taking  other  pre- 
cautions to  indemnify  himself,  until  it  became  too  late  to  do 
it  with  success.  As  we  cannot  know  or  anticipate  the  pos- 
sible injuries  that  may  ensue  from  a  departure  from  the 
terms  of  the  contract,  it  is  proper  that  the  court  should  lay 
down,  and  adhere  to,  a  general  rule  on  the  subject. 

For  these  reasons  I  am  of  opinion,  that  the  decree  of  the 
court  below  be  affirmed  with  costs. 

Per  to  tarn  curiam. 

Judgment  of  affirmance. 


66*  CASES  IN  ERROR  IN  THE 

AI.BAW, 
yj^™^  '    *J°hn   Bush'  APPellallt» 

Bush  against 

Livingston  nnd  Peter  W.  Livingston,  and  John  Townsend, 

Townsend.  t-,  ■. 

„ ____  Respondents. 

A  security  m^z       FROM  the  pleadings,  and  cases  delivered  in  this  cause* 

On   a  good,  nnd  i  o  ' 

bona  fide  con»i-  the  facts  appeared  to  be  these. 

deration,  cannot  l  l 

be  impeached  on       Livingston,  in  the  years  of  1796  and  1798,  borrowed  of 

account  of  a  u-  ,  _  ...  , 

surious      trans-  one   Evertsbn,  the  two  several  sums   ot   3,000   dollars  ana 

where  a  mon-  2,793  dollars  on  mortgage.     The  day  of  redemption  having 

5*1!  Aird  pe£  elapsed,  and  Livingston  being  further  indebted  to  Evcrtson, 

son,  who   pays  f      interest  and  some  other  matters,  amounting,  with  the 

■what  is  due  on  ° 

it  to  the  nioitga-  aUove  principal  sums,  to  6,222  dollars,  Evcrtson  demanded 

gee,  the  mortga-  *  ' 

por  cannot  avoid  payment.     In    consequence  of  this,   Livingston    arranged 

it   in    the  hands        ....  ,    ,,  ,  ,      •         ,  •  r 

of  that  third  per-  with  him  to  pay  5,600  dollars  cash,  and  give  his  notes  tor 

son    on   account     ,  .  ,  .r.,  ...  1     1  ^        r  •    •         .  v    j  *, 

of  an  agreement  the  residue.  1  his  being  acceded  to,  Livingston  applied  to 
sumr,ePeYcehe'd?ng  ^usfl  to  advance  the  5,600  dollars  to  Evcrtson,  agreeing  to 
the  money  paid,  repav  \t  m  qq  davs,  with  a  douceur  of  400  dollars  ;  the  mo- 

and    legal    mte-         *     *  •     ' 

rest,  though  the  ney  thus  advanced,  and  the  douceur  to  be  secured  by  an  as- 
excess   will     he  _  —  r  ... 
denied,  and  only  signment  from  Evcrtson  of  the  two  mortgages,  and  their 

the  money  actu-  ...  ,        r    ,  , 

ally  paid,  and  concomitant  bonds  ;  eacn  ol  the  several  assignments  to  ex- 
btowed.  ,ntifes*  press  3,000  dollars  to  be  the  consideration  paid  by  Bush  to 
cause  come  be-  gvertson      These  transactions  being  thus  concluded,  Busk 

tore   this    court  •»»»•»  O 

on  appeal  from  Kave  to  Livingston  the   following  receipt:  "Received  this 

an  interlocutory    "  °  .- 

order,  and  the  day,  an  assignment  of  one  mortgage,  bearing  date  the  4th 

whole  merits   of  .  .    . 

the  case  appear,  day  ox  June,  1796,  given  by  P.  IV.  Livingston  to  Nicholas 

make  a  final  de-  Evcrtson,  and  of  another,  bearing  date  the  30th  day  of  Ja- 

ihT'  chMceHor  nuary->  1798> also  Siven  by  tne  sa,cl  Livingston  to  said  Evert' 

effect' Ty  U  mt°  son,>  together  *with  the  bonds  accompanying  the  same,  which 

*  67  bonds  and  mortgages  I  acknowledge  myself  to  hold,  of  the 

said  Livingston,  as  security  for  the  payment  of  six  thousand 

dollars,  in  ninety  days  from  this  date,  and  upon  payment  of 

said  sum,  I  hereby  agree  with  said  Livingston  to  procure 

the  said  bonds  and  mortgages  to  be  cancelled.     In  witness. 

Sec.  22d  July,  1799. 

"  John  Bush." 


STATE  OF  NEW-YORK.  67 

The  money  not  being  paid,  Bush,  in  September,  1800,      ALBANY, 

■  i  1       f       Feb.  1805. 

Tiled  his  bill  to  foreclose,  against  Livingston  and  several  ot    ^.^^^^ 
his  judgment  creditors,  stating,  among  other  things,  "  that  Bush 

Peter  IV.  Livingston  applied  to  the  said  John  Bush,  and  re-    Livingston  and 

c       Towuscnd 

quested  him  to  lend  the  said  Peter  W.  Livingston  a  sum  ot  _ 

money,  and  offered  to  secure  the  repayment  thereof  by  pro- 
curing an  assignment  from  the  said  Nicholas  Evertson  to  the 
said  John  Bush,  of  the  said  bonds  and  mortgages."  The 
bill  also  set  forth,  that  the  assignments  of  the  mortgages 
were  made  "for  a  full  and  valuable  consideration,  paid  by 
the  said  John  Bush  to  the  said  Peter  W.  Livingston,  and  by 
him  to  the  said  Nicholas  Evertson,  as  by  the  said  assign- 
ments, endorsed  on  the  said  indentures  of  mortgage,  and 
ready  to  be  produced  as  the  court  shall  direct,  and  to  which 
he  for  greater  certainty  refers  himself,  may  appear." 

Livingston  put  in  his  answer,  and  after  admitting  the 
mortgages,  demand  of  payment  by  Evertson,  and  his  own 
inability,  added,  that  "being  urged  by  his  necessities,  he 
applied  to  the  complainant,  John  Bush,  to  borrow  a  sum  of 
money,  to  pay  off  the  said  bonds  and  mortgages,  or  the 
greater  part  thereof,  whereupon  the  said  John  Bush,  taking 
advantage  of  his  necessities,  offered  to  loan  him  5,600  dol- 
lars, for  ninety  *days,  if  he,  this  defendant,  would  agree  to 
repay  the  same  at  the  expiration  of  that  time,  and  to  allow 
and  pay,  for  the  use  and  forbearance  thereof  for  that  time, 
four  hundred  dollars,  to  which  this  defendant,  under  the 
pressure  of  his  necessities,  agreed."  The  answer  then 
went  on,  and  set  forth  the  contract  for  the  advance,  in  the 
manner  already  stated,  averring  the  douceur  of  400  dollars 
to  exceed  the  legal  interest,  for  the  ninety  days,  of  the  sum 
lent ;  that,  therefore,  the  securities  were  void  in  the  hands 
of  'he  appellant,  and  praying  to  have  them  decreed  to  be 
given  up  to  be  cancelled. 

J  In  support  of  the  answer,  Livingston  examined  Evertson 
as  a  witness,  and  he  deposed,  that  the  sum  paid  to  him  by 
the  appellant,  was  no  more  than  5,600  dollars,  which  he 


*  68 


68 


CASES  IN  ERROR  IN  THE 


ALUANY, 

Feb.  1805. 


Bush 
v. 

Livingston  and 
Townsend. 


*  69 


considered  as  a  loan  from  Bush  to  Livingston ;  but  that,  as 
to  any  further  consideration  for  the  assignment  of  the  mort- 
gages, he  was  ignorant,  though  he  acknowledged  that  he 
drew  up  the  receipt  given  by  Bush  to  Livingston  on  the  ex- 
ecution of  the  assignment  of  the  mortgages. 

After  publication  had  passed,  and  the  cause,  as  between 
Bush  and  Livingston,  was  ready  for  hearing,  Livingston  be- 
came a  bankrupt,  and  Townsend  being  duly  appointed  his 
assignee,  Bush,'va  February,  1803,  filed  a  supplemental  bill, 
making  him  a  party. 

Townsend,  in  his  answer,  admitting  himself  assignee  of 
the  estate  and  effects  of  Livingston,  craved  the  benefit  of 
the  pleadings  and  proceedings  on  the  part  of  Livingston,  and 
insisted  on  the  several  matters  therein  offered  and  insisted 
on  by  Livingston,  as  a  defence  and  bar  to  the  complainant's 
claim,  which  matters,  he  added,  "  he  was  informed  and  be- 
lieved were  true." 

*The  cause,  as  against  Livingston,  came  to  a  hearing 
upon  the  pleadings  and  proofs;  as  against  Townsend,  upon 
bill  and  answer,  when  the  Chancellor  made  a  decretal  or- 
der, directing  an  issue  to  determine  whether  the  assign- 
ment to  Bush  was  a  usurious  contract,  or  one  bona  fide 
made.  As,  however,  no  specification  was  made  of  the 
evidence  to  be  read  on  the  trial  of  the  issue,  and  the  coun- 
sel for  the  parties  could  not  agree  on  what  should  be  ad- 
duced, application  was  made  for  directions  as  to  the  proofs 
to  be  used,  upon  which  his  honour  the  Chancellor  was 
pleased  to  order,  "  that  the  parties  have  leave  to  read  in 
evidence  the  complainant's  bill  of  complaint,  the  answer  of 
the  defendant  Peter  W.  Livingston,  the  mortgages  in  the 
pleadings  mentioned,  and  the  assignments  thereof,  with  the 
exhibits  and  proofs  taken  and  used  at  the  hearing  of  this 
cause  in  this  court,  saving  to  the  parties  just  exceptions  to 
the  said  defendant's  answer,  so  far  as  the  same  is  not  an 
answer  to  the  matters  alleged  in  the  said  bill  of  complaint ; 
and  further,  that  the  said  parties  respectively  be  allowed  to 


STATE  OF  NEW-YORK.  69 

offer  any  additional,  or  other  evidence,  which  may  be  perti-      ALBANY, 


nent  to  the  issue  so  to  be  tried."  \ _^  '  __^J / 

From  this  order  the   complainant  appealed,  contending,  Bush 

that  it  ought  either  to  have  designated  what  specific  parts    Livingston  and 
of  the  bill,  mortgages,  &c.  should  be  read  in  evidence,  or  ' 

have  left  it  at  large  to  the  supreme  court,  to  determine 
what  should  be  so  used  ;  because,  from  the  manner  in 
which  the  order  was  expressed,  it  was  referred  to  the  su- 
preme court  to  determine  what  should  be  deemed  an  a//o 
gation  in  the  bill.  He  also  insisted,  that  whatever  might 
be  the  decision  on  this  point,  still,  as  the  court  now  had 
the  *whole  case  before  them,  they  would,  of  course,  de-  70 

cree  definitively  on  the  matter,  and  that,  therefore,  he  had 
a  right  to  suggest  and  insist  on  whatever  might  be  deemed 
material,  to  show  that  he  was  entitled  to  a  decree  of  fore- 
closure, which  this  court  might  pronounce,  and  remand 
the  cause  to  chancery,  merely  to  carry  such  decree  into 
effect. 

The  respondents,  on  the  other  hand,  urged,  that  the  or- 
der alone  being  appealed  from,  this  tribunal  had  only  to 
decide,  whether  the  Chancellor,  on  ordering  a  feigned 
issue,  has  power  to  direct  what  proofs  are  to  be  offered  ; 
and,  if  he  has,  whether  such  power  was,  on  the  present 
occasion,  legally  exercised  ? 

On  the  cause  being  brought  on,  the  Chancellor  thus  as- 
signed his  reasons  : 

Mr.  President — The  bill  in  this  case,  after  stating  the 
mortgage  and  assignment,  and  alleging  that  the  latter  was 
for  a  full  and  valuable  consideration  to  the  appellant,  con- 
tained no  particular  interrogatories,  but  merely  required 
the  respondents  to  make  true,  distinct  and  perfect  answers, 
upon  their  corporal  oaths,  to  the  matters  and  things  in  the 
said  bill  set  forth.  The  respondent  Livingston  stated  the 
assignment  to  have  been  made  for  a  usurious  considera- 
tion. This  appeared  to  me  pertinent  to,  and  a  direct  an- 
swer to  one  of  the  objects  of  the  general  interrogatory. 


70  CASES  IN  ERROR  IN  THE 

ALBANY,  This  part  of  the  answer  cannot  be  reconciled  to  the  testi- 

v^_l   -^_f    mony  of  Mr.  Evertson,  and  it  was,  therefore,  a  proper 

Bush         subject  for  an  issue. 
Livingston  find        That  the  bill  might  have  been  so  drawn  as  to  avoid  this 
consequence,  as  was  strongly  urged,  could  not  vary  the  re- 
sult.    The  answer  contained  a  precise  negation  of  the  al- 
*  71  legation  on  the  part  of  the  appellant,  *that  the  assignment 

was  made  for  a  full  and  valuable  consideration  j  and,  I 
take  it,  I  could  not  decree  against  this  answer,  on  the  tes- 
timony of  one  witness  contradicting  it.  I,  therefore,  di- 
rected an  issue,  to  try  whether  the  assignment  was  a  usu- 
rious, or  a  bona  fide  contract. 

The  certain  effect  of  sending  the  matter  to  a  jury,  with- 
out the  answer,  unless  the  allegation  of  the  respondent 
could  be  effectually  supported  aliunde,  would  be  a  verdict 
disaffirming  the  answer. 

But  the  intent  of  the  issue  is  to  refer  to  a  jury,  whether 
the  greatest  degree  of  credibility  is  to  be  attached  to  the 
answer,  or  to  the  deposition.  If  either  party  have  any 
auxiliary  evidence,  that  may  cause  the  one  or  the  other  to 
preponderate  ;  but  to  compare,  they  must,  of  course,  be 
contrasted  and  weighed. 

The  circumstances  of  the  case,  and  the  rule  to  be  ob- 
served, appear,  to  me,  too  clear  to  admit  of  doubt. 

It  was  said,  there  was  no  general  rule  on  the  subject ; 
but  the  rule  is  well  established,  that  if  a  case  be  sent  to  a 
jury,  on  the  ground  of  the  evidence  being  in  equilibria, 
the  answer  must  be  sent,  as  well  as  the  evidence  in  the 
cause. 

Withdraw  the  answer,  and  the  scale  must,  in  a  mo- 
ment, kick  the  beam,  for  then,  there  is  nothing  to  form  an 
equipoise. 

But  it  was  said,  that  the  allegations  of  the  defendant 
were  in  avoidance,  and  so  not  evidence.  This,  I  con- 
ceive, has  been  already  answered,  and,  therefore,  it  is  not 
necessary  to  repeat  my  former  opinion. 


STATE  OF  NEW-YORK.  71 

I,  therefore,  sent  the  answer  to  the  jury,  as  part  of  the      ALBANY, 

....  ,  .  Feb.  1805. 

matter  on  which  they  were  to  determine.  v_,—    _ l_/ 

Bush 

V. 

*Benson,  for  the  appellant.     The  permission  given  to    Livingston  and 

read  the  answer  of  Livingston,  in  evidence,  on   the  point 

in  issue,  that  is,  whether  the  contract  were  usurious  or  not,  \^ \\^'  \ 
was  improper ;  because,  that  part  only  of  an  answer  can  be  ^  ^  *■  * 
adduced  in  testimony,  which  is  an  answer  to  the  allegations  *  72 

of  the  bill.  Whatever  goes  in  avoidance,  even  of  that 
which  is  admitted,  must  be  proved.  Gilb.  L.  Ev.  52.  As, 
therefore,  the  bill  did  not  allege  usury,  but  the  defendant 
insisted  on  it,  in  avoidance  of  the  securities  alleged  to  have 
been  entered  into,  the  circumstances  creating  the  usury, 
could  not  legally  derive  any  support  from  the  answer.  This 
doctrine  is  sanctioned  in  Barn.  Ch.  Rep.  373.f  where  it  is  fjiiienv.  Crab. 
said  that,  on  an  injunction  bill,  "  if  a  plain  equity  be  set 
forth  by  the  bill,  and  admitted  by  the  answer,  but  endea- 
voured to  be  avoided  by  another  fact,  the  injunction  shall 
always  be  continued  till  the  hearing."  The  same  principle 
is  to  be  found  in  2  Eg.  Ca.  Abr.  247.  It  is  no  argument 
against  this,  to  urge,  that  the  bill  states  the  assignments  to 
have  been  made  "  for  a  full  and  valuable  consideration." 
They  are  words  of  course,  the  addition  of  counsel,  and 
mere  surplusage  ;  for  it  was  not  necessary  to  do  more  than 
state  the  execution  of  the  deeds,  and  pray  a  foreclosure. 
Besides,  the  expression  itself  is  used  with  a  reference  to 
the  endorsements  on  the  mortgages,  and  cannot,  therefore, 
be  deemed  a  substantive  allegation.  We  also  contend, 
that,  in  the  present  instance,  the  Chancellor  had  no  right 
to  order  an  issue.  This  is  a  power  to  be  exercised  only  in 
cases  of  doubt,  where  the  question  is  on  the  credibility  of 
witnesses,  or  on  which  side  circumstances  preponderate. 
Here,  there  could  be  no  hesitation.  The  answer  of  Living- 
ston *was  inadmissible  on  the  point  of  usury,  and  Evert-  *  75 
son,  his  own  witness,  who  cannot,  therefore,  be  discredit- 
ed by  him,  says,  he  knew  not  of  any.  But,  admitting  that 
Livingston's  answer  is  to  be  received  as  testimony ;  it  does 

1  i 


73  CASES  IN  ERROR  IN  THE 

Albany,      wot   contain  any  fact  amounting,  in  judgment  of  law,  to 
x  Feb.  18Q5.  ^    usurVj  so  as  to  affect  the  securities  in  the  hands  of  the  ap- 
Bush          pellant.     The  statute  against  usury  applies  only  to  original 
LivingsVton  and    contracts  between  borrower  and  lender,  upon  which  securi- 
Townsend.      ^  are  g-iven.     The  maxim,  therefore,  is,  once  usury  and 
always  usury  ;  but  if  not  usury  in  its  inception,  it  can  never 
become  so   afterwards.     It  follows,  that  subsequent    dis- 
counts or  purchases  at  an  under  value,  however   uncon- 
scientious, can  never  taint  the  original  contract.     But  how- 
ever this  may  be,  as  all  the  transactions  relating  both  to  the 
original  contract  and  the  assignment,  are  fully  before  the 
court,  and  as  it  is  not  pretended  that  any  further  light  can 
be  thrown  on  the  subject,  the  tribunal,  before   which  the 
cause  is  now  brought,  will  decide  on  the  whole  case,  with- 
out referring  it  back  to   an  examination,  which  will  serve 
only  to  bring  it  here  again.     In  Le  Guerts  case  the  same 
thing  was  done,  and  it  is  no  more  than  the  ordinary  course 
of  the  court. 

Riggs  and  Hoffman,  contra.  To  determine  whether  the 
answer  of  Livingston  ought  to  have  been  ordered  to  be  read 
as  evidence,  it  is  only  necessary  to  recur  to  the  practice  of 
the  court  of  chancery,  and  the  circumstances  of  the  case. 
As  to  the  first :  whatever  is  stated  in  the  bill  must  be  an- 
swered, though  not  interrogated  to ;  for  were  all  the  inter- 
rogatories, which  are  usually  annexed  to  a  bill,  totally 
*  74  omitted,  still  every  part  must  be  answered  ;  because  *what 

it  sets  forth  is  deemed  an  allegation.  Thus,  a  defendant  is 
under  the  necessity  of  answering,  on  oath,  what  is  contain- 
ed in  the  bill ;  and  the  plaintiff  has  the  advantage  of  purg- 
ing the  conscience  of  his  adversary.  But  when  he  has 
done  this,  he  cannot  take  a  part  of  the  answer  which  suits 
his  purpose,  and  reject  the  residue,  under  a  pretence,  that 
the  matter  in  his  bill  to  which  it  applies,  was  surplusage, 
and  needed  not  to  have  been  answered.  Here  a  considera- 
tion was  set  forth,  on  which  the  assignment  of  the  mort- 
gages was  made.     The  defendant  Livingston,  was  there- 


STATE  OF  NEW-YORK.  r4 

fore  called  on,  either  to  admit  the  consideration  as  stated,      ALBANY, 
show  some  other,  or  deny  it  altogether.     He  has  shown  it    ^^J-L^-^t 
to  be  usurious,  and  had  the   cause,  with  respect  to  him,  Bush 

gone  to  trial  on  bill  and  answer,  it  would  have  been  com-  Livingston  and 
plete  evidence.  There  was,  however,  a  witness  examined,  ""ns''nt' 
and  as  the  Chancellor  might  apply  for  the  assistance  of  a 
jury,  to  aid  his  determination,  it  was  indispensable  to  or- 
der the  answer  to  be  read  in  evidence,  for  otherwise 
there  would  have  been  nothing  to  oppose  to,  or  explain  the 
testimony  of  Evertson,  and  the  verdict  must  necessarily 
have  been  according  to  his  depositions.  It  was  requisite 
that  Livingston's  answer  should  be  read  in  testimony  on  an- 
other ground.  The  cause,  as  between  Bush  and  Toxvnsend, 
went  to  trial  on  bill  and  answer ;  all,  therefore,  that  he 
says,  he  believes  to  be  true,  and  what  he  refers  to  himself, 
must  be  received  as  truth.  The  answer  of  Livingston  he 
expressly  mentions,  adding,  that  he  had  been  informed 
and  believed  "  the  matters  therein  contained  were  true." 
Besides,  when  Townsend  was,  by  the  supplemental  bill, 
made  a  party,  Livingston  became  a  substantial  witness. 
That  the  Chancellor  can  direct   an  issue   only  where  the  #  ys 

testimony  ^clashes,  is  not  correct.  In  2  Fern.  554. |  the  f  ibbotson  v. 
answer  of  the  defendant  was  directed  to  be  read  in  evi- 
dence, merely  to  enable  to  draw  an  inference.  The  truth 
is,  that,  in  most  cases,  it  is  discretionary  in  the  Chancel- 
lor, whether  he  will  send  the  cause  to  a  jury  or  not,  and 
that  there  is  no  settled  practice  on  the  subject,  except 
where  an  answer  denies,  what  one  witness  affirms.  Then, 
indeed,  an  issue  is  ordered  of  course,  because,  on  such  oc- 
casions, the  rule  is,  that  chancery  cannot  make  a  decree. 
Lord  Milton  v.  Edgworth  and  others,  6  Bro.  Par.  Ccu  580. 
Pember  et  Ux.  v.  Mathers,  1  Bro.  Ch.  Rep.  52.  The  prin- 
ciples on  which  courts  of  equity  proceed,  when  they  order 
an  issue  at  law,  are  fully  laid  down  by  Lord  Ken  yon,  in  7 
D.  &?  E.  667.X  "  If,"  says  he,  "  a  court  of  equity  direct  an  $  Bauerman  \. 
issue  to  be  tried,  it  may  modily  it  in  any  way  it  thinks 
proper.     One  of  the  rules  of  courts  of  equity  is,  that  they 


75  CASES  IN  ERROR  IN  THE 

ALBANY,      cannot  decree  against  the  oath  of  the  party  himself,  on  the 

\    L-'    -^"j    evidence  of  one  witness  alone,  without  other  circumstances  ; 

Bu»h  but,  when  the  point  is  doubtful,  they  send  it  to  be  tried  at 

V. 

Livingston  and    law,  directing  that  the  answer  of  the  party  shall  be  read  on 

^ the  trial ;  so   they  may  order  that  a  party  shall   not  set  up 

a  legal  term  on  the  trial,  or  that  the  plaintiff  himself  shall 
be  examined,  and  when  the  issue  comes  from  a  court  of 
equity  with  any  of  these  directions,  the  courts  of  law  com- 
ply with  the  terms  on  which  it  is  so  directed  to  be  tried." 
As  to  matter  of  avoidance  being  to  be  proved,  that  we  do 
not  deny.  The  nature,  however,  of  an  avoidance  is  to  be 
seen.  It  is  something  subsequent,  and  dehors  that  which  is 
admitted  or  alleged.  As  if  a  debt  be  acknowledged,  but 
it  be  added,  "  you  released  it,"  or,  "  I  paid  it ;"  there  the 

*  76  release,  or  ^payment,  being  matter  of  avoidance,  must  be 

proved.  The  answer  is  not  by  way  of  avoidance  of  that 
which  is  admitted,  but  of  showing  it  to  be  otherwise  than 
stated,  and  was,  therefore,  proper  testimony.  Not  only 
the  answer,  but  the  very  bill  may  be  ordered  to  be  read  in 

\Wooiietv.  evidence.  1  Morg.  Ess.  111.  1  Ch.  Ca.  65.  t  The  Chan- 
cellor,  therefore,  had  the  power  to  order  the  issue  direct- 
ed, modifying,  as  he  pleased,  the  evidence  to  be  used, 
and,  though  the  reading  the  answer  is  confined  to  the  alle- 
gations of  the  bill,  that  part  relating  to  the  consideration  of 
the  assignment  was  proper,  because  it  was  alleged  to  have 
been  bonajide.  The  circumstances  of  this  case  render  it 
peculiarly  a  matter  for  jury  reference.  Bush  is  stated  to 
have  paid  but  5,600  dollars  to  Evertson,  and  the  considera- 
tion mentioned,  in  the  assignment  itself,  is  6,000  dollars. 
It  ought,  therefore,  to  have  been  left  to  a  verdict  of  twelve 
men  to  ascertain  whether  the  extra  400  dollars  was  not  a 
usurious  forbearance  for  90  days.  That  it  was  so,  seems 
almost  confessed.  Bush  sets  forth,  that  Livingston  applied 
to  him  to  borrow  money  ;  Livingston  admits  it  to  be  a  loan, 
and  Evertson  asserts,  that  he  thought  the  5,600  dollars 
were  lent  by  the  appellant.  When  all  parties  thus  call  the 
transaction  a  loan,  it  cannot  be  pretended  it  was  a  pur- 


STATE  OF  NEW-YORK.  76 

chase.     It  is  said,  however,  if  the  primitive  contract  was      ALBANY, 

...  ,       .  rr,  Feb.  1805. 

not  usurious,  no  subsequent  matter  will  make  it  so.   1  rue,     ^^^^y 
as  between  the  original  parties.     But  what  is  the  contract  Bush 

here  ?     'I  he  mortgages  ?    No.     The  debt  created  between    Livingston  and 

00  ,  .-  Townsend. 

Livingston  and   Bush  to  pay  off  those  mortgages,  and  lor     . 

which  the  assignment  was  to  be  the  security.  Bush  takes 
the  mortgages,  not  on  the  original  valid  consideration,  but 
on  *one  that  was  foreign  to  them,  new,  and  tainted.     It  77 

is  strange  that  the  securities  shall  stand  good  for  a  consi- 
deration, which,  if  they  did  not  exist,  would  be  illegal.  It 
has  been  ruled,  that  the  security  was  void,  though  the  debt 
remained,  but  never  till  now  argued  that  the  debt  was  void 
and  the  security  good.  This  would  be  an  easy  mode  of 
slipping  through  and  evading  the  statute.  Wherever  there 
is  a  borrowing  and  lending,  it  is  within  the  act,  and  it  is 
not  in  the  wit  of  man  to  frame  a  contrivance  to  take  the 
transaction  out  of  its  operation.  Coxvp.  115.f  776.$  Doug.  fPV  v.  £«£ 
740. §     In  Bac.  Abr.  419.  old  ed.  pi.  6.  there  is  a  case  which  *  jetum  v. 

*"  ,  •  •    ■      11       Brooks. 

shows  that  usury  may  take  place  upon  a  security  originally  $  Lov>e  v  W(ji. 
good,  and  be  insisted  upon,  between   the    parties  them-  ler- 
selves.^     The  endorsor  of  a  note  for  200  pounds,  which  JMas^.Thm- 
had  three  months  to  run,  passed  it  to  the  plaintiff,  for  the  life 
consideration  of  197  pounds  ;  at  the  end  of  that  time,  an- 
other note  at  three  months,  for  200  pounds  was  given,  and 
three  pounds  more  paid.     It  was  by  Lee,  Ch.  J.  referred 
to  a  jury,  to  determine  whether  the  transaction  was  a  loan 
or  a  purchase  ;  they  determined  it  to  be  the  former,  and  it 
was  held  usury.     This   authority  does  away  all  idea  of  a 
purchase,  and  establishes,  that  a  new  security  for  a  debt 
originally  legal,  if  compounded  with  a  usurious  receipt  of 
interest,  is  bad   for  the  whole,  as  against  the    borrower. 
But  though  the  subject  of  usury  or  not,  has  been  entered 
into,  this  court  can  pronounce  only  on  that  which  is   ap- 
pealed from  ;  the  order  and  its  contents. 

Harison  and  Benson,  in  reply.     We   do   not  deny  the 
power  of  a  court  of  equity  to  send  a  case  to  a  jury.     But 


77  CASES  IN  ERROR  IN  THE 

ALBANY,      it  is  not  an  ad  libitum  power,  and,  when  exercised,  must  be 
i  j^'        '      for  the  determination  of  a  fact,  not  a  matter  of  law.     Here 
Bush          the  simple  question  was,  whether,  on  #the   circumstances 
Livingston  and    detailed,  the  transaction  were  usurious  or  not.     This  be- 
Townsend.      jng  an  jnference   0f  jaWj  ought  to  have  been  made  by  the 
*  78  Chancellor.     He   could  not  contemplate   the   addition  of 

Livingston's  testimony  as  a  witness,  because,  to  render  it 
admissible,  he  must  have  released  the  surplus  of  his  estate, 
and  the  contingency  of  such  an  event  was,  in  itself,  suffi- 
cient to  prevent  any  measure  being  taken  upon  the  expecta- 
tion of  it.  Besides,  the  issue  is,  in  fact,  to  try  whether 
the  defendant,  or  his  own  witness,  is  to  be  believed.  There 
is  no  instance  of  such  an  order.  Allowing,  however,  that 
it  was  correct  to  send  this  cause  to  a  jury,  that  could  not 
be  directed  to  be  used  as  evidence  before  them,  which  was 
not  so  in  chancery.  The  answer  would  not,  even  there, 
have  been  testimony  to  establish  the  usury  ;  for,  as  contain- 
ing new  matter,  in  avoidance,  it  must  have  been  proved  by 
something  extrinsic.  For,  what  avoids,  needs  not  be  sub- 
sequent. Any  circumstance  which  destroys  the  otherwise 
legal  consequence  of  a  thing,  whether  it  be  contempora- 
neous, concurrent,  or  subsequent,  is  matter  of  avoidance. 
Thus,  infancy  and  usury  are  avoidances,  but  the  former  is 
not  a  subsequent  matter,  and  the  latter  takes  place  in  the 
formation  of  the  contract  it  avoids,  at  the  very  time  it  is 
created ;  yet  each,  if  relied  on,  must  be  proved.  On  this 
point,  the  rule  in  equity  is  the  same  as  at  law.  In  both, 
the  defence  must  be  strictly  made  out  by  evidence.  This 
principle  is  found  in  Tate  v.  Wellins,  3  D.  £s?  E.  531.  Be- 
cause, as  is  laid  down  in  5  Bat:  Abr.  old  ed.  420.  pi.  7.  "  a 
court  will  not  easily  avoid  a  bond,  and  the  corrupt  agree- 
ment ought  to  be  specially  and  particularly  set  forth,  and 
the  quantum  of  interest,  otherwise  the  plaintiff  can  never 
7y  tell  what  to  answer."     It  *is  not  possible  to  vacate  the 

securities  in  the  hands  of  the  appellant,  on  the  score  of 
usury  unless  it  be  shown  to  have  existed  in  the  original 
transaction  between  Livingston  and  Evertson,  for   it  is  in 

4 


STATE  OF  NEW- YORK.  79 

right  of  the  latter  that  Bush  now  claims.     He  can  recover  ALBANY, 

from  Livingston  no  more  than  is  due  in  virtue  of  the  primi-  t^L"  ^^j 

tive  contract,  which  cannot  be  impeached  by  an  ex  post  facto  Bush 

agreement  be  tween  Livingston  and  the  assignee  of  Evertson.  Livingston  and 

Neither  in  law  nor  in  equity,  is  the  plea  of  usury  a  favour-  ownsen  ' 


ite.  By  each  tribunal  the  money  actually  paid  is  deemed 
in  conscience  due,  and  endeavours  are  invariably  made  by 
both,  to  give  back  the  principal  and  legal  interest,  though 
they  may  deny  the  surplus  or  excess.  In  a  case  in  4  D.  & 
E.~\  it  was  una  voce  laid  down,  that  if  an  instrument  can,  -f-  Le  Grange  v. 
by  any  reasonable  construction,  be  considered  not  usurious,  y"^  g0^'. 
the  court  was  bound  to  do  so.  As,  therefore,  in  this  case, 
the  whole  merits  are  before  the  court,  and  the  securities 
held  by  the  appellant  were  given  on  a  bona  Jide  considera- 
tion, we  ask  for  a  final  decree. 

Per  Curiam,  delivered  by  Spencer,  J.  The  appellant's 
counsel  have  insisted  on  the  argument, 

1st.  That  so  much  of  Livingston's  answer  as  charges  the 
appellant  with  usury,  is  not  evidence,  and  is  to  be  proved 
aliunde* 

2d.  That  the  order  of  the  Chancellor,  in  leaving  at 
large,  what  part  of  the  answer  was  to  be  read,  is  therein 
erroneous. 

3d.  That  if  Livingston's  answer  is  to  be  received  as  evi- 
dence, in  toto,  the  charge  of  usury  is  not,  in  law,  esta- 
blished. 

4th.  That  an  issue  ought  not  to  have  been  directed,  in  con- 
sequence of  contradictions  between  Livingston  and  his  own 
witness,  Evertson. 

*5th.  That  the   whole  merits  of  the  case  being  before  •*  go. 

this  court,  it  will  decide  thereon  definitively,  and  remit  the 
cause  to  be  carried  into  execution. 

The  counsel  for  the  respondents  have  combated  these 
propositions,  and  insisted, 

1st.  That,  independent  of  Livingstoph  answer,  the  fact 
of  usury  is  made  out. 


80 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


Bush 
v. 

Livingston  and 
Townsend. 


'*  81 


2d.  That  from  the  state  of  proceedings,  in  relation  to 
Townsend,  the  charge  of  usury  is  established. 

3d.  That  from  Livingston's  bankruptcy  he  can  now  be 
rendered  a  competent  witness,  and,  therefore,  an  issue 
ought  to  be  directed. 

In  investigating  this  cause,  several  of  the  points  raised 
will  not  be  examined,  as  a  decision  on  them  would  be  su- 
perfluous, from  the  view  I  have  taken  of  the  subject.  It 
appears  to  me,  from  the  authorities  I  have  consulted,  that, 
admitting  Livingston's  answer  in  relation  to  the  usury  to  be 
evidence,  and  to  stand  uncontradicted,  I  still  must  main- 
tain, that  there  existed  no  usury  as  applicable  to  the  bonds 
and  mortgages  assigned  to  the  appellant ;  and  that,  whether 
the  answer  is  or  is  not  evidence,  still,  that  with  respect  to 
the  excess  of  the  5,600  dollars  paid  by  the  appellant  to 
Evertson,  the  testimony  of  the  latter,  and  the  admissions 
in  the  bill,  show  that  the  appellant  cannot  recover  it. 

I  now  proceed  to  examine  whether  the  transactions  stated 
in  Livingston's  answer,  will,  under  the  notion  of  usury,  de- 
prive the  appellant  of  his  right  to  hold  the  mortgages  as- 
signed to  him  as  a  security  for  5,600  dollars,  and  the  legal 
interest  which  has  since  accrued  thereon.  In  the  research 
I  have  made,  I  have  met  with  no  authority,  or  even  dictum, 
that  a  security  for  the  payment  of  money,  in  its  inception 
uncontaminated  *with  usury,  can,  by  an  ex  post  facto  agree- 
ment for  a  receipt  of  a  greater  sum  than  the  statute  allows 
for  forbearance,  be  rendered  usurious.  In  the  case  read 
by  the  respondents'  counsel,  from  5  Bac.  Abr.  419.  pi.  6. 
there  was  a  renewed  obligation,  in  which  the  usury  and  the 
bona  fide  debt  were  consolidated,  and  there  it  was  held  to 
be  usurious.  But  this  case  is  not  law,  as  will,  I  think,  be 
hereafter  shown. 

The  first  essential  to  usury  is,  that  there  be  a  loan. 
Hawkins,  in  vol.  2.  373.  sec.  1.  says,  "that  his  a  contract, 
on  the  loan  of  money,  to  give  the  lender  a  certain  profit 
for  the  use  of  it  upon  all  events,  whether  the  borrower 
make  any  advantage  of  it  or  not,  or  the  lender  suffer  any 


STATE  OF  NEW- YORK.  81 

prejudice."     It  is  true,  that  it  may  take  place  in  relation  to      $^$2* 
the  rent  of  land?,  or  the  sale  of  goods,  but,  as  applicable    ^ -^^^^ 
to  this  case,  an  inquiry  into  usury  of  that  kind  cannot  be  "a 

™»rps<?arv  Livingston    and 

necessary.  ^         Townsend. 

It  is  true,  that  the  appellant,  Livingston,   and    the   wit-  . 

ness,  Evertson,  speak  of  the  money  paid  by  the  former 
to  the  latter,  as  a  loan  from  Bush  to  Livingston.  The 
transaction,  however,  must  decide  that  point,  and  not  the 
expressions  and  language  of  the  parties.  Bush  says,  that 
Evertson  having  demanded  payment  of  his  debt,  Living- 
ston  applied  to  him,  and  requested  him  to  lend  him  a  sum 
sufficient  for  that  purpose,  and  offered  to  secure  the  re- 
payment thereof,  by  procuring  an  assignment  from  Bush 
to  Evertson;  and  that,  accordingly,  on  the  22d  of  July, 
1799,  the  assignments  were  made  in  due  form  of  law. 
Livingston  states,  that,  being  urged  by  his  necessities,  he 
applied  to  Bush  to  borrow  a  sum  of  money  to  pay  off  the 
bonds  and  mortgages,  and  that  Bush  taking  advantage  of 
his  necessities,  offered  to  loan  him  5,600  dollars  for  ninety 
days,  if  he  would   allow  him    for  the    *forbearance   400  8~ 

dollars,  to  which  he  consented.     That  it  was   then  agreed 
between    Bush,   Evertson   and  himself,   that  Bush   should 
pay  Evertson  5,600  dollars  towards  satisfying  him  for  the 
amount  due  on  the  bonds  and  mortgages,  and  that  Living' 
ston  should  secure  to  Evertson  what  should  remain  due  for 
principal  and  interest,  Evertson  assigning  to  Busk,  to   se- 
cure him  the  repayment  of  the  5,600  dollars,   and  also  the 
400  dollars,  in  pursuance  of  which  agreement,   the   bonds 
and  mortgages  were  assigned.     Evertson  deposes  that  he 
understood   and  believed    the  5,600  dollars  paid   him  by 
Bush  was  a  loan  from  Bush  to  Livingston,  and  his  reason 
for  so  believing  was,  that  the  money  was  paid  at  the  re- 
quest of  Livingston  for  his  sole  benefit.      The  transaction 
between  Bush  and  Livingston  was  substantially  this :  Bush, 
to  gain  400  dollars   for   ninety  days  forbearing    of  5,600 
dollars,  advanced  the  latter  sum   to    Evertson   for  Living* 

Kk 


J2  CASES  IN  ERROR  IN  THE 

ston,  upon  good  and  valid  securities,  and  took  the  assign- 
ments as  for  6,000  dollars. 
B«h&  As  between  Evertson  and  Bush,  there  can  be  no  question 

Living***  and  that  the  latter  became  invested  with  all  the  right  of  the 
former  to  the  sum  then  actually  due  on  the  bonds  and 
mortgages.  In  fact,  this  payment  was  not  a  loan  to  Living- 
ston, because  Bush  paid  it  to  Evertson,  as  the  consi- 
deration of  his  assignment.  If  Evertson  himself,  without 
the  intervention  of  Bush,  had  exacted  400  dollars,  or  any 
other  sum,  from  Livingston,  for  forbearance  ior  a  limited 
period,  such  exaction,  however  usurious,  would  not  invali- 
date the  bona  fide  securities.  Io  the  case  of  Pollard  v. 
Schohj,  Cro.  Eliz.  20.  Pollard  sold  to  Scholy  two  oxen  for 
6/.  6*.  Hd.  payable  at  All  Saints  next ;  on  the  game  day 
Scholy  required  a  longer  time  ;  Pollard  gave  him  to  the 
first  of  May,  paying  him  for  forbearance,  three  quarters 
*  83  *of  wheat,  which  amounted  to   more  than  the    legal  inte- 

rest.    In  debt  for  the  6/.  6*.  8d.  the  defendant  pleaded  this 
in  avoidance  of  the  contract.     The  opinion  of  the  justices 
was,  "  that  the  statute  does  not  make  the   contract  void 
which  was  duly  made,  but   doth  only  avoid   all  contracts 
for  usury,  and  this  last  contract  is  void,  being  against   the 
|  See  Turner  v.  statute,  but  the  first  was  good  being  made  bona  fide.'f     In 
Rep.  n.  a  note  2  Hawk.  377.  sect.  17.  is   his  case  :   "  A.  was  iairly  mdebt- 
fe£rofaede-  ed  to  B.  in  1,125/.  and  on  A.  desiring  time  to  pay  it,  B.  in- 
irrerton  a"t  listed  that  150/.  should  be  added  to  the  debt,  as  he  would 
rious  note,  tho'  h        nothing  to  do  with   interest.     Accordingly,  A.   gave 

ior  the   amount  <->  *■*  *  w 

of  the  very  usu-  h'im  nve  acceptances  for  these   two    sums,  payable  within 

nous  note,   can-  l 

not  he  impeach-  fourteen  months,  and  it  was  held,  that   the    bona  fide  debt 

ed  for  the  usury  . 

of  the  first  note,  subsisted,  unimpeached  by  the  subsequent  usurious  transac- 


where    a    third 
person  joins    in 


tion."$  A  reference  to  the  reporter,  from  whom  the  ante- 
j  Gv5°vd  FW-  sclent  decision  is  taken,  fully  justifies  the  summary  of  the 
m  ls!'ciladC'  case  in  **M*««  The  same  PrinciPle  is  recognised  in  7 
§  The 'Queen  v.  j^0(jm  119*     sir  T.  Ray.  196-lf     4  Burr.  2253.ft  and   in 

Seivell  y  "  ..i'ii  it.    i         t 

U  Rex  v.  Mien.  Vin.  Abr.  tit.   Usury,  II.  pi.   6.    it   is  laid  down,      that  it 

5w      m  *'  the  first  contract  is  not  usurious,   it  shall  never  be  made  so 

by  matter  ex  post  facto."     The  case  of  Ferral  v.  Shaen,   1 


STATE  OF  NEW-YORK.  83 

baund.  294.  is  also  to  the  same  effect,  that  a  bond,  which 
was  good  when  made,  is  not  avoided  bv  a  subsequent  usu- 
rious contract,  for  delaying  the  day  of  payment.  B,lsl1 

All  these  authorities  proceed  on  the  wording  of   the  sta-  Livingston   and 

Townsend. 
tutes  against  usury.      I  hey  forbid  the  taking  more  than  the  _— -. 

rate  of  interest  prescribed,  and  declare  all  assurances,  &c. 
whereby  more  shall  be  reserved,  or  trsken,  to  be  void. 
Now  if,  in  this  case,  the  bonds  and  mortgages  in  their  cre- 
ation were  valid,  if  no  more  interest  was  reserved  than 
the  law  allowed,  how  can  *they,    conformably  to   this  sta-  *~  8^ 

tute,  and  the  universally  concurring  expositions  of  it,  be- 
come void  ?  If  the  mortgages  and  bonds  cannot  be  affect- 
ed by  the  charge  of  usury,  much  less  can  the  assignment, 
for  the  reason,  that  this  is  an  act  between  Evertson  and 
Bush.  Evertson  was  capable  of  parting  with  his  interest 
in  these  securities,  and  Bush  of  taking  it.  Evertso?i  has 
assigned,  for  an  adequate  consideration,  all  his  right  to  the 
bonds  and  mortgages,  and  this  cannot  be  impeached  on 
the  pretence  of  usury  between  Bush  and  Livingston  ;  be- 
cause, as  Livingst07i  is  not  a  party  to  the  assignment,  he 
cannot  complain  that  it  is  an  assurance  by  which  he  is 
bound  to  pay  more  than  the  sum  then  due  on  the  mortga- 
ges. 

I  think  the  appellant  not  entitled  to  recover  more  than 
the  5,600  dollars,  and  the  interest,  on  two  principles,  in- 
dependently of  Livingston'' s  answer.  1st.  When  Evertson 
made  the  assignment,  Livingston,  as  is  proved  by  Evert- 
son, gave  him  two  promissory  notes  for  the  balance  be- 
yond the  5,600  dollars  paid  him  by  Bush.  These  notcs 
were  accepted  by  him  as  a  payment  of  so  much,  towards 
the  mortgages  and  his  account,  and  have  since  been  actual- 
ly paid  in  full.  The  assignee  of  all  choses  in  action,  except- 
ing bills  of  exchange  and  notes,  takes  them  subject  to  all 
the  equities  between  the  original  parties.  Bush,  therelore, 
though  assignee,  nominally,  for  6,000  dollars,  can  exact  no 
more  than  Evertson  could,  and  clearly,  by  transactions 
between  Evertson  and  Livingston,  before  or  at  the  time  of 


84  CASES  IN  ERROR  IN  THE 

ALBANY,      assignment,  no   more,  as  between  them,  than  5,600   dol- 
lars could  be  collected  on  the  bonds  and  mortgages.       But, 


Bush  2uly.  From  the  appellant's  state  of  his  own  case,  in  connec- 

Livingstrn   and  tion  with  the  testimony  of  Evertson,  it  appears,    evidently, 
that  the    *appellant   availed  himself  of  the   necessities  of 
*  g5  Livingston  to  obtain  more  than  legal  interest ;   and   to  use 

the  expressions  of  Lord  Mansfield,  "  though  the  transaction 
itself  may  not  amount  to  usury,  yet  it  was  taking  a  hard 
and  unconscionable  advantage."  In  the  case  of  Floyer  v. 
Edwards,  Coxvp.  116.  it  was  held  that  money,  thus  claim- 
ed, should  not  be  recovered  in  an  action  for  money  had 
and  received.  In  a  court  of  equity,  whose  peculiar  juris- 
diction it  is  to  relieve  in  cases  of  fraud,  and  whose  maxim 
it  is,  that  he  who  would  have  equity,  must  do  equity,  I 
think  there  can  be  no  doubt,  that  apart  from  the  considera- 
tion of  usury,  the  appellant  ought  not  to  recover  beyond 
the  5,600  dollars  and  the  interest.  To  thisl  conceive  him 
well  entitled.  The  principles  I  have  advanced,  and  the 
conclusions  I  have  drawn,  lead  to  the  most  equitable  and 
righteous  result.  The  appellant  obtains  the  money  really 
advanced,  with  interest,  and  the  respondent  is  relieved 
from  the  advantages  attempted  to  be  taken  of  his  distresses 
by  the  appellant. 

It  will  be  observed,  that  I  have  abstained  from  any  in- 
quiry into  the  correctness  of  the  Chancellor's  order  in  point 
of  form ;  because,  in  my  opinion,  the  issue,  if  correct  in 
form,  would  have  been  upon  a  point  wholly  immaterial. 
The  respondents  could  never  have  made  out  more  than 
Livingston  alleges,  and  on  his  allegations,  taking  them  for 
true,  my  opinion  has  proceeded,  so  far  as  respects  the  ques- 
tion of  usury. 

There  remains  only  one  point  to  be  considered;  that  is, 
whether  this   court  will  finally  decide  the  cause?    In  the 
#  86  case  of  Gouverneur  fc?  Kemble  v.  *Le  Guen,  this  court,  on 

an  appeal  from  the  order  of  the  Chancellor,  directing  an 
issue,  finally  decided  the  cause,  and  directed  the  complain- 
ant's bill  to  be  dismissed.     It  did  so  on   precedents   from 


STATE  OF  NEW- YORK.  86 

the  proceedings  of  the  House    of  Lords,  in   England,  on       alt?  \\Y 
appeals  from  chancery,  and  because  the  whole  merits  of  the       ich'  'J^-, 
case  were  before  the  court.     When   it   is   considered  that  Bu^ 

v. 

there  can  be  no  further  proofs  in  the  cause,  that  the  whole  Livingston   and 
merits  have  been  discussed  and  reviewed,  that  it  will  save  ' 

litigation  and  expense,  I  am  myself  contented  to  be  bound 
by  the  precedent  which  has  been  made.  In  rny  opinion,  the 
order  appealed  from  ought  to  be  reversed,  and  an  order  en- 
tered, that  the  Chancellor  decree  the  respondents  to  pay  the 
appellant,  by  a  time  to  be  limited,  5,600  dollars,  with  inte- 
rest, from  the  22d  of  July,  1799,  with  costs,  in  the  couit 
below  to  be  taxed,  or  that  the  respondents  be  foreclosed 
their  eauity  of  redemption. 

Judgment  of  reversal  accordingly. 


Hallett  and  Bowne  against  Jenks. 


IT  was  ruled,  that  a  cause  cannot  be  set  down  for  hear-      Setting  down 

causes  for  hear- 


ing* 


till  cases  are  delivered. 


*Amos  Wetmore,  Appellant,  B? 

against 
Hugh  White,  and  Hugh  White,  junior,  Respondents. 

THE  appellant  being  seised  of  250  acres   of  land,   on  By  a    sale   of 
the  cast  side  of  the   Saghquate  creek,  in  Whitestown,  to.  JfJ^  ^*»y, 

will  pass  as  au 
incident.  If  the  Mater  in  a  stream  be  owned  by  two  persons,  whose  lands  are  on  opposite  sides, 
and  they  agree  to  erect  mills  on  the  land  of  one,  and  turn  the  whole  stream  to  the  mills;  it 
is  an  appropriation  of  the  water  to  the  mills,  and  if  they  be  held  jointly,  or  in  common,  a 
release  of  the  right  of  one  tenant  in  the  mills,  will  pass  his  right  in  the  water  also.  Payment 
of  consideration  money,  possession  and  making  improvement*,  take  a  case  out  of  the  statute 
of  frauds,   and  will  entitle  to  ■  decree,  for  a  specific  performance. 


37  CASES  IN  ERROR  IN  THE 

ALBANY,      gether  with  a  moiety  of  the  soil  under  water,  and  the  re, 
■^L        /-.    spondent,  Hugh  White,  the    father,   being  seised    of  300 
Wetmore       acres  on  the  west  side,  with  the  other  moiety    of  the  bed 
Whit-  &  White.  °f  tne  creek,  entered  in  the  year  1 787,  into  a  verbal   en- 
■   ■  gagement,  to  divert  on  their  joint  account,  for  the  use  and 

purpose  of  mills  to  be  erected,  the  water  of  the  stream  to 
such  spot  in  the  grounds  of  either,  as  should,  in  the  opi- 
nion of  one  John  Beardsley,  be  most  proper  for  the  site  of 
a  mill.  In  pursuance  of  this  agreement,  Beardsley  examin- 
ed the  grounds  on  both  sides  of  the  creek,  and  fixed  upon 
a  place  on  the  lands  of  the  appellant.  Having  thus  ascer- 
tained where  the  erection  should  be  made,  Wetmore,  White, 
senior,  and  Beardsley,  on  the  13th  of  May,  1788,  executed 
a  written  agreement,  to  build  a  grist-mill,  on  Wetmore 's  land, 
a  few  rods  north  of  his  house;  he  and  White  to  "own" 
each  one-fourth  of  the  mill,  in  consideration  of  furnishing  all 
materials,  &c.  and  constructing  the  dam  to  turn  the  water  of 
the  creek ;  Beardsley  to  "  own"  the  other  two-fourths,  on  do- 
ing the  carpenter's  work,  Sec.  Upon  these  terms  the  mill  and 
dam,  being  in  the  course  of  the  year  1788,  completed,  it  was, 
about  the  time  when  they  were  finished,  verbally  agreed  be- 
tween the  same  parties,  to  build,  adjoining  to  the  grist  mill, 
a  saw-mill,  to  be  supplied  with  water  in  the  same  manner,  and 
to  be  "  owned"  in  equal  proportions  by  the  three.  This  also 
•'  being  carried  into  effect,  the  mills  were  used  and  *enjoyed 
according  to  the  preceding  agreements,  for  about  three  years ; 
when  being  very  much  out  of  repair,  Beardsley,  in  1791,  in 
consideration  of  600  dollars,  by  release,  duly  transferred  his 
interest  in  them,  to  the  appellant,  who,  under  a  parol  con- 
tract, when  they  were  totally  unfit  for  use,  shortly  after 
purchased  from  Hugh  White,  the  father,  his  proportions, 
for  187  dollars,  and  paid  the  money,  but  received  no  con- 
veyance of  the  shares  White  held  in  the  property,  nor  was 
any  thing  said  of  the  right  to  the  water  of  the  creek 

On  concluding  the  anteced  nt  transactions,  the  appellant 
took  down  the  saw-mill,  which  had  become  perfectly  use- 
less, and  rebuilt  it  entirely.     He  also,  after    thoroughly 

4, 


STATE  OF  NEW-YORK.  88 

repairing  the  grist-mill,  added  a  pair  of  new   mill-stones,       ALBANY, 
and  peaceablyenjoyed  both  mills  for  the  space  of  one  year, 


when  they  were  accidentally  burnt  down.  Wetmore 

v 

Immediately  after  their  being  thus  destroyed,  the  ap-  White  &  White, 
pellant,  at  a  very  great  expense,  and  without  any  opposi- 
tion or  molestation  from  the  respondents,  rebuilt  the  mills, 
and  continued  in  the  use  and  occupation  of  them,  and  the 
uninterruped  enjoyment  of  the  water  of  the  creek,  until  Au- 
gust, 1797,  when  the  respondent,  Hugh  White,  the  father, 
threatened  that  he  would  cut  down  the  dam,  and  deprive  the 
appellant  of  the  use  of  the  water,  unless  he  would  become 
a  Presbyterian,  and  join  the  congregation  under  the  charge 
of  the  reverend  Bethuel  Docld,  and  would  also  build  a  dam 
and  turn  one  half  of  the  water  of  the  creek  over  a  mea- 
dow contiguous  to  the  Saghquate,  and  adjoining  to  the  dam 
erected  for  the  use  of  the  mills ;  which  meadow,  on  the 
25th  of  April,  1 794,  the  respondent,  Hugh  White,  had,  in  #  gg 

consideration  of  blood  *and  natural  affection,  conveyed, 
with  a  moiety  of  the  waters  of  the  creek,  to  his  son,  Hugh 
White,  junior,   the  other  respondent. 

In  September  and  October,  1797,  the  dam  across  the 
creek  was,  to  the  great  injury  of  the  mills,  at  three  several 
times  cut  through,  and  the  water  permitted  to  escape. 

On  the  5th  December,  1797,  the  appellant  filed  a  bill  in 
chancery,  stating  the  antecedent  circumstances,  with  a 
prayer  for  a  writ  of  injunction,  to  restrain  the  respondents 
from  molesting  or  disturbing  him  in  the  enjoyment  of  the 
mills,  mill  dam,  and  the  water  of  the  Saghquate  creek  ;  that 
he  might  be  quieted  in  his  possession  of  them,  and  for  such 
further,  and  other  relief,  as  the  court  might  please  to  di- 
rect. 

To  this  bill,  the  respondents,  on  the  3d  of  August,  1798, 
put  in  their  joint  and  several  answers,  in  which  they  ad- 
mitted the  situation  of  the  lands  of  the  appellant,  and  re- 
spondent, Hugh  White,  the  father ;  the  parol  engagement 
to  erect  the  mill-dam  and  mills  ;  the  w  ritten  engagement ; 
the  sale  by  White,  of  his  shares  in  the  mi  Hi ;  the  payment 
of  the  consideration  money  ;  that  there  was  a  preliminary 


89  CASES  IN  ERROR  IN  THE 

ALBANY,      conversation  between  him  and  the  appellant,  about  securing, 

Feb.  1805.        .  ,  ll      c    ,  .     .        ° 

v  _jf.    ^_  j     m   some  proper  manner,  the    water   or  the  creek   lor  the 

Wetmoie  m\\[s  when  erected  ;  and  a  continued  necessity,  for  several 
White  ix  White,  years  after  the  sale  to  the  appellant,  of  the  mills,  for  the 
accommodation  of  the  public  :  that  they  were  burnt  down 
and  rebuilt,  &c.  but  the  answer  denied  that  the  right  or 
privilege  in  the  waters  of  the  creek,  had  ever  been  parted 
with  to  the  appellant,  or  that  he  had  paid  any  consideration 
for  it;  or,  that  he  had  any  right  to  appropriate  the  waters 
of  the  creek  to  the  use  of  the  mills  ;  or  to  maintain  the 
dam  for  turning  the  water  from  its  usual  course.  The  an- 
*  90  swer  *also  set  forth,  that   202   dollars  and  40  cents,  had, 

besides  some  other  contingent  charges,  been  paid  by  White, 
the  father,  as  his  proportion  of  the  expenses  for  building 
the  mills,  and  that  he  had  sold  his  interest  in  them,  for  only 
182  dollars  50  cents,  at  a  time  when  they  were  in  such  re- 
pair, and  in  which  they  continued  for  a  considerable  time 
afterwards,  as  to  be  able  to  do  business  as  well  as  at  any 
time  since  their  erection.  That  soon  after  their  destruc- 
tion, White,  the  father,  as  he  believed,  in  a  conversation 
with  the  appellant,  explained  to  him  the  nature  of  the  con- 
tract for  the  sale  of  the  mills,  and  then  utterly  denied  the 
appellant's  right  to  the  water  ;  that  the  appellant  had  never 
requested  a  conveyance  of  the  right  of  water,  and  had, 
from  a  consciousness  of  his  having  none,  erected  at  his  own 
expense,  a  temporary  dam,  below  that  for  the  use  of  the 
mills,  in  order  to  turn  the  water  inco  the  respondents'  mea- 
dow, the  want  of  which,  in  consequence  of  the  upper  dam, 
annually  injured  the  crop  of  hay,  and  could  not  be  com- 
pensated for,  by  even  1,500  dollars  ;  they  also  insisted  on 
the  statute  of  frauds. 

The  testimony,  the  essence  of  which  is  given  in  the  de- 
cision of  the  court,  in  general  corroborated  the  facts  in  the 
bill,  and  from  that  given  by  two  of  the  witnesses,  it  ap- 
peared, that  the  understanding  of  the  parties  at  the  time  of 
the  first  parol  agreement  was,  wherever  the  mills  were 
built,  "  there  the  waters  were  to  go"     That  Beardsley  con- 


STATE  OF  NEW- YORK.  90 

sklered  the  right  to  the  water,  as  perpetually  annexed  to     ALBANY, 
the  mills,  and  never  entertained  any  apprehension  of  its  be- 


ing liable  to  be  taken  away.  Wetmore 

The  cause  having  been  heard,  his  honour  the  Chancellor,  White  &  White. 
dismissed  the  appellant's  bill  with  costs,  from   which   de-  —————— 

cree  he  now  appealed,  and  his  honour  thus  assigned  his 
reasons : 

*Mr.  President — The  appellant  deduces  his  equity  from  *  gj 

two  sources  :  1st.  A  parol  contract  relating  to  the  saw-mill ; 
and,  2d.  A  written  contract  relating  to  the  grist-mill. 

It  is  necessaiy,  in  the  first  place,  to  determine  the  ex- 
tent of  the  parol  contract,  as  arising  from  the  admissions 
and  proofs  of  the  parties. 

From  the  terms  of  the  bill,  it  would  appear,  that  the  ap- 
pellant intended  to  avail  himself  of  both  the  written  and 
parol  contracts,  as  forming  one  general  connected  arrange- 
ment of  the  whole  interests,  in  the  subject  of  controversy. 

It  states,  that  it  was  agreed  between  the  appellant  John 
Beardsley  and  Hugh  White,  senior,  to  complete  a  grist  and 
saw-mill,  for  their  joint  use,  and  at  their  joint  expense,  on 
the  land  of  the  appellant.  That  John  Beardsley  was  to 
have  one-half  of  the  grist-mill,  and  the  other  parties,  each 
one-fourth ;  and  that  each  of  the  parties  was  to  have  one- 
third  of  the  saw-mill,  each  contributing  a  proportional  share 
of  the  expense.  That  Beardsley  should  allow,  to  the  ap- 
pellant, a  reasonable  compensation  for  his  land,  and  a  like 
compensation  to  the  respondent  Hugh  White,  senior,  and 
the  appellant,  for  the  use  of  the  water. 

The  respondents  admitted,  that  it  was  agreed  to  build 
the  mills,  and  that  the  interests  were  to  be  in  the  propor- 
tions stated  in  the  bill.  But  they  deny  that  any  contract 
was  entered  into  respecting  the  water,  or  that  Beardsley 
had  a  right  in  it,  or  paid  for  it. 

The  only  witness  who  has  any  knowledge  of  the  parol 
contract  between  the  parties,  is  Beardsley ;  and,  if  his  testi- 
mony is  in  direct  opposition  to  that  *part  oim  the  respond*  *  92 

J.  I 


94  CASES  IN  ERROR  IN  THE 

ALBANY,     cnts'  answer,    which  he  was  required  to   make,   by  the 

%_^L'    _^y    terms  of  the  bill,  it  might  neutralize  the  answer,  but  can 

Wetmorc       have  no  effect  beyond  that,  unless  aided  by  other  evidence 

White  &  White,  or  circumstances.     But  all  the  circumstances  developed, 

"  — —   tenj  to  corroDorate  the  answer. 

Beardsley's  testimony  is  very  indistinct,  from  a  want  of 
discrimination,  as  to  the  object  to  which  it  applies.  He 
confounds  the  grist  and  saw-mills ;  the  parol  and  written 
agreements ;  and  I  found  it  impracticable,  from  his  rela- 
tion, to  distinguish  satisfactorily,  what  part  was  intended 
to  apply  to  the  written,  and  what  to  the  parol  contract. 
The  same  confusion  is  discernible  as  to  time  ;  and,  whe- 
ther he  speaks  of  contemporaneous  transactions,  or  those 
which  took  place  at  different  periods,  cannot  be  discover- 
ed. 

Mills  are  generally  calculated  for  duration.  But  those 
constructed  by  the  parties  were  so  slight,  that  the  appel- 
lant alleges,  that,  at  the  time  he  purchased  of  Reardsley, 
which,  it  appears,  was  in  October,  1790,  and  probably,  not 
more  than  two  years  after  they  were  finished,  (for  the  con- 
tract for  this  erection  was  not  made  till  May,  1788,)  they 
were  already  out  of  repair,  and  in  a  ruinous  state  at  the 
time  the  respondent  Hugh  White,  senior,  sold  his  interest 
in  them,  which  it  appears  was  early  in  1791. 

From  the  permanency  of  the  object   of  association,  on 
which  much  reliance  was  placed  by  the  appellant's  counsel, 
no  important  result  can,  therefore,  be  deduced,  in  favour 
of  the  construction  they  contend  for. 
.    **  ^Another  circumstance,  which  throws  some  light  on  the 

subject  in  controversy,  is,  the  different  mode  of  conduct 
observed  between  the  appellant  and  Beardsley,  relating  to 
the  common  interest,  as  far  as  respected  that  portion  which 
the  appellant  contributed  towards  the  common  undertaking, 
and  that  which  related  to  the  property  of  Hugh  White,  the 
father. 

On  the  18th  of  March,  1789,  the  appellant  executed   to 
Beardsley,  an  indenture  for  the  undivided  half  of  his  land. 


STATE  OF  NEW-YORK.  93 

intended  for  the  accommodation  of  the  mills,  with  express      ALBANY, 

e        u     j-  r    u  •       /-•  i      j        Feb.  1805. 

covenants  tor  the  diversion  01  the  water  in  his  own  land,    v  . —  w— *_' 

for  there  is  nothing  in  the  conveyance,  indicating  the  claim       Wetmore 

of  right  to  dispose  of  a  privilege   of   that  nature,  in   the  White  &  White. 

land  of  the  respondent,  Hugh  White,   the  elder ;  and   on 

the  9th  of  October,    1790,  Beardsley,  by   endorsement  on 

that  conveyance,  regrants  the   premises  to  the  appellant. 

This  endorsement  is  confined  to  the  subject  of  the  former 

grant  merely,  and  is   evidently  calculated  only  to  revest 

the  title  derived  under  the   conveyance. 

There  is  no  evidence  of  any  application  for  a  similar 
grant  to  the  respondent,  Hugh  White,  the  father,  and  though 
the  relationship,  which  existed  between  him  and  the  appel- 
lant, has  been  urged  as  a  reason  for  inducing  an  unusual 
confidence  between  the  respondent,  Hugh  White,  senior, 
and  the  appellant,  that  consideration  would  not  apply  to 
Beardsley,  who,  in  his  deposition,  alleges,  that  he  suppo- 
sed the  appellant  "  trusted  to  the  honour  and  integrity  of 
the  defendant,  Hugh  White,  senior,  and  considered  the  pa- 
rol agreement  as  abundantly  sufficient."  He  was,  how- 
ever, more  interested  in  the  arrangement  than  ^either  of  *  94 
the  other  parties,  and  lie  gives  no  reason  for  his  own  con- 
duct. 

Both  the  appellant,  and  Beardsky,  appear  to  have  been, 
fully  apprized  of  the  necessity  of  securing  their  reciprocal 
rights  by  conveyance ;  and,  that  it  was  resorted  to  in  one 
instance,  and  unattended  to  in  another,  is  a  circumstance, 
which,  unexplained  as  it  is,  has  a  strong  appearance  ot  a 
mutual  reliance,  on  the  advantages  each  possessed,  to  ap- 
ply them  to,  or  withhold  them  from,  the  common  object  of 
pursuit.  The  one  party  owned  the  land,  on  which  the 
mills  were  erected ;  the  other,  so  much  of  the  water,  as 
contributed  essentially  to  the  value  of  the  mills,  though 
not  so  much  of  it,  as  by  withdrawing  the  water,  to  render 
the  mills  totally  useless. 

Upon  the  whole,   I  do  not  think  a  parol  agreement  is 
made  out  in  proof,  admitting  the  evidence  to  be  compe- 


94  CASES  IN  ERROR  IN  THE 

Fef  Ai8oV       tCnt  to  sustam  **»  variant  from,  or  enlarging  the  written 
\**m^s~S    contract  and  the  parol  contract,  admitted   by  the   answer, 
Wetmore       relating  to  the  saw-mills.     It  is,  therefore,  unnecessary  to 
White  k  White,  examine  the  influence  of  the  statute  of  frauds   and  perju- 
ries on  the  case. 

2d.  As  to  the  written  contract. 

This  has  no  words  evincive  of  the  intent  of  the  parties 
to  perpetuate  this  joint  interest,  beyond  the  duration  of 
the  mill,  which  was  the  object  of  it.  It  recognises  the 
land,  on  which  it  was  to  be  built,  as  the  land  of  the  appel- 
lant, divides  the  contracting  parties,  by  describing  the  ap- 
pellant and  the  respondent,  Hugh  White,  senior,  as  of 
the  one  part,  and  Beardsley  of  the  other  part,  and  thus, 
by  opposing  the  interest  of  the  latter,  to  that  of  the  former, 
shows,  that  so  far  as  respected  the  grist-mill,  the  most  in- 
timate  union  of  interest  *existed  between  the  appellant  and 
the  respondent,  Hugh  White,  the  father ;  and  that  the  con- 
fidence which  they  had  in  each  other  could  have  no  influ- 
ence on  Beardsley. 

The  mills  erected  in  consequence  of  the  written  agree- 
ment, were  destroyed  by  fire ;  and  Hugh  White,  senior, 
declares  in  his  answer,  that  he  informed  the  appellant,  be- 
fore he  rebuilt  them,  that  the  water  was  his ;  and  that  he 
had  not  sold  it.  This  is  an  answer  to  the  matter  stated 
in  the  bill,  to  which  he  was  interrogated,  and  of  conse- 
quence available  to  him,  to  rebut  the  deductions,  which 
might  be  otherwise  made,  from  his  tacit  acquiescence  in  re- 
building the  mills. 

The  subsequent  conduct  of  both  the  appellant,  and  the 
respondent,  Hugh  White,  senior,  is  an  exposition  of  this 
intent ;  for  upon  the  purchase  of  White's  share  in  the  mills, 
by  the  appellant,  instead  of  procuring  a  conveyance  from 
White,  for  the  rights  necessary  for  his  own  accommodation, 
he  is  content  with  a  mere  verbal  relinquishment  of  the 
share  held  by  White,  the  father,  in  the  mills.  This  is  per- 
fectly consistent  with  the  views  of  the  parties,  if  the  con- 
tract was  to  operate  merely  to  extinguish  the  rights  acqui* 


Wetraore 


STATE  OF  NEW-YORK.  95 

red  by  the  contract,  by  the  respondent,   White,   senior,   in      ALBANY, 

,  .  .  Feb.  1805. 

the  land   of  the   appellant.     But  it  the   appellant  s  object 

were  to  acquire  or  perpetuate  privileges  in  the  land   of  the 

respondent,  White,  the  father,  the  grant  by  him  executed  to  Whlte  **  White. 

Beardsley,  and  by  Beardsley  to  him,  shows  that  he  must  have 

been  acquainted  with  the  proper  mode  of  securing  it. 

I  am  persuaded,  from  the  whole  tenor  of  the  transaction, 
that  the  parties,  at  the  time  of  the  contract,  contemplated 
only  a  temporary   establishment  and  *accommodation,   to  96 

remove  the  inconvenience  ta  which  their  remoteness  from 
mills  exposed  them ;  that  the  conveyance  from  the  appel- 
lant to  Beardsley,  cannot  be  admitted  to  aid  the  construc- 
tion of  the  contract  between  the  parties  to  it,  as  it  does 
not  appear  that  the  respondent,  Hugh  White,  the  father, 
had  any  agency  in,  or  was  privy  to  it ;  and,  that  the  bet- 
ter construction  is,  that  the  reciprocal  interests  of  the  par- 
ties were  to  be  affected  merely,  while  the  principal  objects 
of  their  enterprise,  the  mills,  endured  j  that  those  destroyed^ 
it  ceased  to  operate. 

I  was  of  opinion,  therefore,  that  the  appellant's  bill 
ought  to  be  dismissed  with  costs. 

Piatt,  for  the  appellant.  The  equity  of  the  appellant 
does  not  arise,  entirely  from  the  written  and  subsequent  pa- 
rol agreement,  but  also  from  the  original  parol  contract  for 
the  erection  of  the  mills,  and  appropriation  of  the  water. 
That  there  was  such  an  antecedent  contract,  serving  as  a 
substratum  for  the  whole,  and  influencing  the  future  acts  of 
the  parties,  is  proved  not  only  by  the  testimony,  but  by  the 
answers  of  the  respondents  ;  and,  though  Beardsley  be  one 
of  the  witnesses  whose  evidence  shows  this,  yet  no  objec- 
tion can  be  made  to  his  competence,  for  they  have  made 
him  their  own.  Besides,  his  assignment  was  a  mere  quit- 
claim. 

These  parol  agreements  having  been  in  part  executed, 
are  uniformly  held  to  be   without  the  operation  of  the  sta- 


96 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


Wetinore 
White  &  White. 

t  Pyke  v.  ffil. 
Hams 

$  Whitbread    v. 
Brookhtirst. 
§  Earl  of  Jlyles- 
fbrtFs  case, 
"U  Only  v.    Wal- 
ker. 

■J"t"   JWjWon   v. 
JVewton  &  Lee. 

*  9r 


i\  Halfpenny  v, 
Bullet. 


§§  Pomfret  v. 
Ricrofi. 


Iffl  J)oioman,s 
case. 

**  Browning  v. 
Benton. 

*\  Throckmor- 
ton v.  Tracy. 
**  #/7Z  v. 
Grange. 
*§  Chapman  v. 
.Dalton. 
*^Mansell  v. 
Mansell. 
**f  Jiafforne  v. 
Goodman. 
**+  Taylor  v. 
Stibbert. 
*   98 


tute  of  frauds.  1  i^k  176  to  190.  1  Pew.  o«  tTo/tf.  295 
to  299.  2  Fmz.  455.f  1  £rc.  C&  Cb.  417.|  2  »S7ra.  783.$ 
2  ^*i.  407.11     7  Bro.  Pari.  Ca.  21.fl" 

*It  cannot  be  argued  that  the  agreements  intended  to 
convey  only  a  temporary  interest,  during  the  existence  of 
the  mills  then  constructed.  The  mere  circumstance  of 
turning  the  stream  into  an  artificial  and  new  bed,  by  dig- 
ging a  canal,  negatives  such  an  idea.  Suppose  the  mills 
had  been  burnt  down  the  day  after  their  erection,  would  it 
have  put  an  end  to  the  contract  ? 

The  establishment  was  in  its  nature  permanent.  It  par- 
took of  the  quality  of  the  fee  on  which  erected  ;  the  water 
was  an  appurtenance  inseparable  from  it ;  it  was  like  soul 
and  body. 

That  it  was  intended  to  be  a  permanent  establishment,  is 
evinced  by  the  acts  of  the  parties.  They  are  inconsistent 
with  any  other  intention  ;  and,  it  is  a  principle,  that  where 
a  contract  is  not  definite,  but  money  laid  out  on  it,  the 
court  will  infer  the  terms  from  the  acts.  1  Poiv.  on  Cont. 
297.  2  Eq.  Ca.  Abr.  48.  5  Fin.  523.  2  Vern.  373.JJ  The 
water  was  indispenable  for  the  mills,  and  every  thing  essen- 
tial to  the  use  of  a  thing  granted,  must  necessarily  pass 
with  it.     1  Saund.  322,  323.§§ 

It  is  also  settled,  that  where  a  contract  is  dubious,  the 
strongest  construction  shall  be  against  the  seller.  1  Pow, 
on  Cont.  395.  5  Rep,  7.  MTO  Ploxvd.  140.**  161.*f  171.*$ 
289.*§     Co.  Litt.  197.  a.  267.  b.     Roll,  Abr.  228. 

These  authorities  establish,  that  the  respondent  sold  the 
waters  of  the  creek.  To  them  may  be  added  2  Eq.  Ca. 
Abr.  685.  pi,  8.  679.  pi.  5.  Talbot's  Cases,  252.*^j  2G2.  1 
Pow,  on  Cont.  302.  2  Vern.  363.**t  2  Vcs.  jun.  440.** % 
which  show,  that  as  the  conveyance  to  Hugh  White, junior, 
was  voluntary,  it  cannot  prevail  *against  a  previous  bonajide 
purchaser,  for  a  valuable  consideration ;  and,  that  at  all 
events,  as  he  was  a  purchaser  with  notice,  the  appellant's 
claim  cannot  be  affected  by  the  grant  to  the  son. 


STATE  OF  NEW-YORK.  98 

Had  he  intended  to  have  relied  on  the  deed,  it  ought  to      ALBANY, 
have  been  pleaded.     Wyatt,  324.  335.  2  Atk.  240.t  2  Eq.     ^^^j 
Ca.  Abr.  681.  pi.  2.     As  to  the  statute,  it  applies  to  here-       Wetmore 

ditaments.  White  k  White. 


f  Brewerton  v. 
Gold  and  Henry,  contra.     The  contract  was  confined  to  Gamut 

the  first  mill  erected,  and  the  very  written  contract  relied 

on  is   not  set  forth  by  the   bill,  in  hcec  verba,  and  if  that 

proved  be  different,  the  bill  ought  to  be  dismissed.     2  Fes. 

2994     5  Ves.  jun.  452.§     In  this,  there  is  no  mention  of  \  Legal  v.  Md- 

any  agreement  whatever,  as  to  diverting  the  water,  build-  $  Leg  v.  Haver- 

ing  a  race-way,  &c.     The   original  parol   agreement,  can^c'' 

never  be  in  issue.     It  was  nothing  more  than  a  preliminary 

conversation,  leading   to   the   agreement,  and   was,  when 

that  was  concluded,  resolved  into  it. 

Any  agreement  as  to  the  water,  is  expressly  denied, 
and  if  only  one  witness  contradict  the  answer,  no  decree 
can  be  founded  upon  it.  As  to  Beardsley,  his  testimony 
must  be  totally  discarded.  It  is  inconsistent  and  incredi- 
ble ;  besides,  being  to  uphold  his  own  acts,  it  is  totally  in- 
admissible. 

If  a  plaintiff  claims  lands  by  a  parol  agreement,  no  wit- 
nesses can  uphold  it,  for  their  testimony  is  inadmissible. 
None,  aliunde  the  answer  can  be  received.     2  Bro.  Ch.  Ca. 
566,567.11     Where  there  is   a  written  contract,  no  parol  ^  Whitchurch  v. 
evidence  is  admissible,  to  alter  or  vary  it,  but  only  to  rebut  * » Qoicet v.  Jilat- 
an  equity.  2  Vern.  34.**  Bunb.  65.ff  2  Atk.  383.£f  1  Bro.  \fBinstead  v. 
Ch.  Ca.  93.$$  514.1HI  3  Bro.  Ch.  Ca.  168.*f    1  Ves.  jun.  J^g*^^ 
241.  S.  C.  1  Ves.  iun.  *326.*t  402.*$  3  Bro.  Ch.  Ca.  388.  Pallet. 

J  +  ...,.§§  Imluim  v. 

S.  C  4  Bro.  Ch.  Ca.  437.*%  3  Ves.  jun.  34.**|  5  Ves.  jun.  child. 

6S8.*VX-  Nmthson. 

The  doctrine  of  part  performance  has  rendered  the  sta-  $£££& 
lute  of  frauds  almost  a   dead  letter.     Except  we  be  tied  *  99 

,       *tBrodicv.St. 

down  by  authorities  that  govern  in  this  country,  we  ought  pauL 
to  resist  it.     In  England  it  is  admitted  to  have  been  carried  3cw*6i».  *"" 
too  far,  and  to  support  it,  the  facts  ought  to  be  of  the  most  "Jn*X7"  V" 
unequivocal  nature.     3  Ves.  jun.  381.**$  712.**U  4  Ves.  gfflfif 

Tncksnn  v.  Cator.    *'§  mils  T.  Stradling.    ••fl  Forster  v.  Hale. 


&9  CASES  IN  ERROR  IN  THE 

ALBANY,  jun.  720.  Amb.  586.f  1  Pow.  on  Cont.  308,  309.  1  Fonb. 
v^lv  -^,  174,  175.  Remaining  in  possession,  is  not  such  a  fact  as 
Wetmore       to  be  conclusive.     The  acts  must  be  of  such  a  nature,  that 

V. 

White  &  White,  the  purchaser  would  otherwise  be  a  loser.  Here  the  ap- 
.  q  t  ~"— ~  pellant  is  more  than  compensated  by  his  profits  from  the 
ttakeg.  m\\\.     We,  therefore,  contend,  that  the  agreement  insisted 

on,  is  not  clearly  shown ;  that  part  performance  is  not 
proved,  and  that  the  contract,  such  as  it  was,  is,  from  the 
testimony,  variant  from  that  of  the  bill.  To  decide  the 
establishment  to  be  permanent,  and  the  appellant  entitled 
to  the  water,  will  be  to  make  a  new  agreement,  for  both 
parties. 

Van  Vechten,  in  reply.  The  answer,  if  viewed  attentive- 
ly, will  be  seen  to  admit  the  original  parol  agreement.  With 
this,  the  written  contract  is  perfectly  consistent.  The  bill 
stated  the  substance  of  the  agreement,  and  that  was  suffi- 
cient. The  cause  was  submitted  in  the  court  below,  on 
this  simple  question,  whether  the  establishment  were  per- 
manent or  not.  To  state  more  than  was  necessary  to  show 
that,  is  not,  by  any  rule  of  law  or  equity,  ever  required. 
Dormer  v.  Fortescue,  3  Atk.  124. 132.  The  written  agree- 
ment disproves  a  material  allegation  in  the  answer,  and  so 
*  100  is  admissible.     It  is  also  admissible  to  *illustrate  the  views 

of  the  parties.  If  the  defendant  admit  the  agreement  in  his 
answer,  he  cannot,  afterwards,  insist  on  the  statute  of 
frauds. 

So  much  water  was,  from  every  principle,  to  be  turned 
off  to  the  mills,  as  was  done  in  the  first  instance.  This  was 
concurred  in  afterwards,  by  both  parties ;  therefore,  then, 
no  pretence  for  avoiding  the  contract,  or  excluding  testi- 
mony on  the  ground  of  uncertainty. 

The  agreement  to  build,  was  confessedly  executed. 
White  does  not  pretend  he  ever  explained  his  restrictive 
idea  of  the  contract,  till  after  the  sale  to  the  appellant^ 
What  interest  did  the  parties  think  they  had ;  what  had 
they,  in  law,  in  the  mills  under  the   first  executed  agree- 


STATE  OF  NEW-YORK.  100 

ment  ?     It  must  have  been  a  fee.     This  they  all  imagined,      ALBANY, 
and  the  respondent  White,  the  father,  permitted  the  appel-    v  _J-!'   _^_  / 
lant,  under  this  idea,  to  go  on  expending  money  on  the       Wetmore 
property,    without  ever  undeceiving  him.      This  was  a  White  &  white. 
fraud. 

The  relief  for  the  appellant  must  be,  1st.  A  perpetual  in- 
junction ;  or,  2d.  A  conveyance,  by  the  Whites,  of  their  in- 
terests. The  acquiescence  of  the  respondents  since  1791, 
is  evidence  of  a  permanent  establishment. 

The  matters  contended  for  by  the  appellant,  the  water, 
&c.  are  incidents  to  the  mill,  not  realties.  The  sale  of  the 
interest  in  the  mills  passed  them  of  course. 

Per  Curiam,  delivered  by  Thompson,  J.  The  only 
question  litigated  between  the  parties,  is  touching  the  right 
to  the  waters  of  the  Saghquate  creek,  for  the  use  of  the 
mills,  now  owned  and  occupied  by  the  appellant.  A  brief 
statement  of  some  of  the  facts  ^thrown  into  the  case,  but  ^  jqj 

not  controverted,  may  afford  some  assistance  in  ascertain- 
ing the  truth  with  respect  to  those  in  dispute.  It  is  ad- 
mitted, that,  in  the  year  1788,  the  appellant  was  seised  of 
the  lands  on  the  east  side  of  the  Saghquate  creek,  together 
with  an  equal  moiety  of  the  creek  itself.  That  Hugh  White 
was  seised  of  the  lands  on  the  west  side  of  the  creek,  to- 
gether with  the  other  moiety  of  the  creek,  and  that  being 
so  seised,  they,  together  with  one  Beardslcy,  built  a  grist- 
mill and  saw-mill  upon  the  land  of  the  appellant.  That  a 
canal  was  dug  for  the  purpose  of  diverting  some  of  the 
waters  of  the  creek  to  those  mills.  That  the  parties  con- 
tinued to  occupy  them  jointly,  according  to  their  respec- 
tive proportions  therein,  for  about  three  years,  when  the 
appellant  purchased  out  the  shares  of  his  copartners.  The 
purchase  from  Hugh  White  was  by  parol  only,  and  upon 
this  the  controversy  between  the  parties  arises,  presenting 
the  following  questions  for  examination.  1st.  Whether  the 
appellant  ever  acquired  any  right  to  the  waters  of  the  Sagh- 
quate creek,  for  the  use  of  the  mills  ?     2d.   If  so,  whether 

?i  m 


101  CASES  IN  ERROR  IN  THE 

ALBANY,      that  was  a  temporary  or  a  permanent  right  ?  3d.  Whether, 
v  _JL'    _^  /    the  purchase  being  by  parol,  the  respondents  can  avail  them- 

Wetmore       selves  of  the  statute  of  frauds  to  avoid  it  ? 
Whites*  White.       The  evidence  appearing  in  the  case,  is  partly  written  and 
'  partly  parol,  as  to  the  applicability  of  which,  to  the  subject 

matter  of  complaint  in  the  appellant's  bill,  some  little  diffi- 
culty and  confusion  arises.  The  written  testimony,  the  ar- 
ticle of  agreement,  appears  not  to  have  had  for  its  objecty 
the  securing  of  the  water  to  be  diverted  from  the  Sagh- 
quate  creek.  It  was  between  White,  Wetmore  and  Beards- 
*  102  tyi  an{*   was  ^solely  for  the  purpose  of  providing  for  the 

building  of  the  mills,  and  fixing  the  proportion  of  the  re- 
spective parties  therein.  The  matter  of  complaint  by  the 
appellant's  bill,  is  not  for  a  violation  of  the  articles  of  agree- 
ment, but  for  an  interruption  in  the  use  of  the  waters  of  the 
Saghquate  creek.  This  written  agreement  might  be  admis- 
sible, as  illustrative  of  the  views  and  intentions  of  the  par- 
ties in  erecting  the  mills,  and,  in  some  measure,  explanatory 
of  the  testimony  of  some  of  the  witnesses  ;  but  the  right 
to  divert  the  water  must  depend  upon  some  other  evidence. 
The  bill  of  complaint,  so  far  as  it  may  refer  to  the  articles 
of  agreement,  is  to  be  considered  as  a  history  of  circum- 
stances leading  to  the  main  subjects  of  inquiry  ;  the  right 
to  the  use  of  the  water,  and  the  purchase  by  Wetmore  from 
White.  The  appellant  alleges,  that  he  purchased  the  shares 
of  White  in  the  mills,  together  with  the  privilege  of  the 
water,  but  reposing  confidence  in  the  integrity  and  upright- 
ness of  White,  he  omitted  to  take  a  conveyance  therefor. 
This  is  the  subject  matter  of  the  complaint,  to  which  most 
of  the  testimony  on  both  sides  is  pointed,  and  which  the 
appellant  alleges  was  not  secured  by  writing. 

The  parol  evidence  on  this  subject  cannot  be  viewed  as 
explanatory  of  the  written  agreement,  or  as  a  preliminary 
conversation  leading  to  a  contract  consummated  by  the  in- 
strument in  writing ;  but  relating  to  a  distinct  and  indepen- 
dent subject.  An  examination,  therefore,  into  the  original 
contract,   respecting  the    water,    in    connection  with  the 


*  IOC 


STATE  OF  NEW-YORK.  102 

sale  of  the  mills,  and  a  decree  bottomed  thereon,   would      ALBANY, 
not,   I  think,  be  travelling  out  of  the  case,  or  a  violation    v_r-'  -»1# 
of  the  principle,  *ihat  the  decree  must  be  secundum  allega-      Wetmore 
ta  et  probata.  White  &  White, 

That  there  was  a  contract  made  between  White  and  Wet- 
more,  relative  to  diverting  the  water  to  the  mills,  is 
manifest  from  the  testimony  in  the  cause,  the  acts  of  the 
parties,  and  the  confessions  of  White.  The  extent  of  that 
contract  will  be  hereafter  examined.  To  establish  this 
contract,  there  is  the  united  and  uncontradicted  testimony 
of  three  witnesses. 

Lemuel  Leavenworth,  who  was  examined  both  on  the 
part  of  the  appellant  and  respondents,  says,  the  parties 
went  in  the  first  place,  to  view  the  spot  where  the  mills  are 
at  present  situated  ;  they  then  viewed  the  land  on  White's 
side,  and  it  was  agreed,  in  conversation,  that  wherever 
the  mill  was  erected,  "  there  the  zuater  should  go."  That 
John  Beardsley  was  to  determine  where  the  place  should 
be  ;  and  that  he  determined  in  favour  of  the  place  where 
the  mills  now  are.  To  the  respondents'  interrogatories,  he 
answered,  that  he  knew  of  a  verbal  contract,  for  appropri- 
ating the  waters  of  the  Saghquate  creek,  to  the  use  of  the 
mill  or  mills,  to  be  erected  on  the  same.  Amos  Wetmore 
declared,  that  he  heard  Hugh  White  say,  that  wherever  the 
mills  should  be  built,  there  the  waters  should  go.  John 
Beardsley  swore,  that  it  was  agreed  between  Hugh  White 
and  Wetmore,  that  wherever  the  mills  should  be  built, 
there  the  water  should  go.  In  conformity  to  this  agree- 
ment, we  find  the  parties  digging  a  canal,  building  a  dam 
across  the  Saghquate  creek,  and  turning  the  water  to  the 
mills. 

White,  in  his  answer,  I  think,  impliedly  admits,  that 
there  had  been  a  contract  relative  to  the  water  ;  though  he 
says,  the  particular  plan  "for  securing  it"  had  net  been 
matured,  or   carried  into   effect ;  evidently,  I  ^'conceive,  I0^' 

alluding  to  its  not  having  been  reduced  to  writing. 

If,  then,  there  was  an  agreement  to  divert  the  natural 


104  CASES  IN  ERROR  IN  THE 

ALBANY,      course  of  this  creek,  the  object  clearly  was  for  the  use  of 
._,— '  .-^    *he  mills.     The  same  reason  that  existed  at  first,  for  turn- 
Wetmore       ing  the  water,  would  continue  to  exist  as  long  as  the  mills 
White  &  White,  remained.     By  a   sale   of  the   mills'  generally,    I  should, 
——————  therefore,  incline  to  think  the  water  would  pass  as  an  inci- 
dent to  them,  without  any  special  provision.     A  contrary 
inference  would  be  against   every   reasonable  intendment. 
Supposing  the  water  thus  diverted,  had  been  the  only  water 
to  supply  the  mills,    would  there  have  been  a  doubt   as  to 
the  intention  of  the  parties  ?     The  quantity  of  water  cannot 
materially  alter  the  case  ;    and,  indeed,  it   was    not  denied 
on  the  argument,  but  that  the  appellant  had  acquired  a  right 
to  the  use  of  the  water,  coextensive   with  the  duration  of 
the  mills  first  built. 

But  it  is  not  necessary  to  say,  the  right  to  the  water  pass- 
ed, as  an  incident  to  the  mills,  in  the  sense  above  men- 
tioned j  or,  that  the  appellant  acquired  this  right,  at  the 
time  he  purchased  the  mills.  It  was,  I  think,  amply  secu- 
red by  a  prior  contract :  and  this  will  account  for  the  lan- 
guage of  some  of  the  witnesses,  and  the  guarded  expres- 
sions in  the  respondents'  answer. 

Anna  Barnard,  a  witness  on  the  part  of  the  respondents, 
testified,  that  she  was  present  at  the  time  of  the  sale,  and 
that  White  sold  **  his  right  and  interest"  in  the  mills,  and 
delivered  up  his  right  to  the  mill  and  mill-irons,  but  does 
not  recollect  that  any  thing  was  said  respecting  the  waters 
of  the  creek.  The  reason  of  this,  probably,  was,  because 
Is  105  the  parties  considered  *the  use  of  the  waters  provided  for 

by  the  former  contract,  made  before  the  mills  were  erected. 
Hugh  While,  in  his  answer,  admits  that  he  sold  his  shares 
in  the  mills  to  the  appellant,  for  the  consideration  of 
seventy-fzve  pounds,  and  that  the  purchase-money  has  been 
duly  paid.  But  says,  "  at  the  time  of  his  relinquishing  his 
shares,  no  mention  was  made  of  any  right,  interest,  or  pri- 
vilege, in  the  waters  of  the  said  creek,  nor  was  any  such 
right  or  privilege  included  in  the  said  contract  of  sale,  of  the 
said  milLn    With  truth,  probably,  he  might  so  declare,  be 


STATE  OF  NEW-YORK.  105 

cause  it  was  not  necessary  to  say  any  thing  on  the  subject,      ALBANY, 

.  i  -ij.ru  Veb.  1805. 

or  include  it  in  the  sale,  it  having  been  provided  tor  by  an-    y^^^j*^ 
other  agreement.     This  he  does  not  undertake  to  deny.       Wetmore 
He  only  says,  the  plan  was  not  matured   and  carried  into  wiiiicfc  White, 
effect ;  by  which  I  understand  him  to  mean,  as  I  before 
observed,  that  no  writings  were  entered    into  ;  deeming 
them  necessary  to  mature  and  perfect  the  contract. 

I  the  more  readily  adopt  this  construction  of  this  part  of 
the  answer,  because  it  reconciles  it  with  the  evidence.  For, 
if  White  meant  to  be  understood,  that  no  contract  whatever 
had  at  any  time  been  made,  respecting  the  water,  he  stands 
contradicted  by  three  witnesses.  1  consider  the  effect  of 
this  agreement,  as  an  appropriation  of  the  water  to  the  use 
of  the  mills  ;  that  it  thereby  hecame,  in  some  measure,  an 
appurtenance  to  them  ;  and  that,  under  such  circumstances, 
a  grant  of  the  principal  subject  would  pass  the  water,  as  an 
incident. 

The  next  inquiry  is,  whether  this  contract  vested  a  per- 
manent, or  only  a  temporary  right  to  the  use  of  *the  wa-  *  105 
ter  ?     If  I  am  correct  in  the  construction  given  to  White's 
answer,  it  is  not  such  a  denial  of  the  contract,  as  to  bring 
it  within  the  rule  of  equity,  making  it  necessary  to  esta- 
blish it,  by  the  testimony  of  more  than  one  witness.     That 
rule  can  onlv  be  applied  to  cases  where  the  answer  is  a  clear 
and  positive  denial  of  the  fact.     1  Fez.  66.J     But  admit-  \£M£  * 
ting  the  answer  to  be  a  direct  denial  of  any  contract  respect- 
ing the  water  j  I  should  not  consider  it,  under  the  circum- 
stances of  the  case,  as  coming  within  that  rule.     It  is  im- 
peached by  the  testimony  of  several  witnesses,  and  there 
are  other  facts  and  circumstances,  corroborating  the  testi- 
mony of  Bearddey  on  this  subject.     2  Aii.  19.$    3  Atk.  £*»*". 
407.§  1  Vez.  97.H     If  Beardsley's  testimony  is  to  be  re-  §  oniy  v. 
ceived  as  competent  evidence,  upon  which  to  ground  a  de-  ^Armix.Bri*- 
cree,  under  the  above  rule,  it   establishes,  beyond  all  pos-  «• 
sibility  of  doubt,  a  permanent  right  in  the  appellant  to  the 
water,  for  the  use  of  the  mills.     Bcardsley  being  acquaint- 
ed with  the  whole  transaction,  leading  to  and  attending 


106  CASES  IN  ERROR  IN  THE 

ALBANY,      the  building  of  the  mills,  gives  a  very  minute  account  re- 

^  Feb.  1805^    Specting  the   business,   and  declares  most  unequivocally, 

Wetmore       that  the  agreement  was,  that  the  water  diverted  from  the 

White  &  White,  main  channel  of  the  creek,  was  to  be  for  the  supply  of  the 
■  mills  for  ever.  In  this  he  stands,  in  some  measure,  cor- 
roborated by  the  testimony  of  Leavenworth  and  Wetmore, 
who  say,  that  it  was  agreed,  that  wherever  the  mills  should 
be  built,  there  the  water  should  go.  The  latter  declared 
also,  that  when  White  sold  his  right  and  title  in  the  mills  to 
the  appellant,  he  supposed  the  use  of  the  water  perpetually 
was  intended  likewise  to  be  sold. 

*  107  *It  is  said,  however,  that  Beardsley  has  so  contradicted 

himself,  with  respect  to  the  consideration  paid  by  Wetmore 
to  White,  for  the  water,  that  he  is  unworthy  of  credit. 
This  allegation,  I  do  not  think  well  founded.  In  his  an- 
swer to  the  appellant's  interrogatories,  on  this  first  point, 
he  says,  that  White  was  to  have  one-fourth  part  of  the  mill, 
on  account  of  his  allowing  the  water  to  be  turned  from  the 
main  creek,  for  the  use  of  the  mill  for  ever,  and  for  digging, 
draining,  and  turning  the  water ;  and,  in  consideration  of 
other  things  mentioned  in  a  certain  written  contract.  In 
his  answer  to  the  respondents'  interrogatory,  he  says,  the 
consideration  that  Wetmore  paid  White  for  the  use  of  the 
water  was,  that  the  waters  overflowed  the  lands  of  Wet- 
more, and  that  White  was  to  have  one-fourth  part  of  an  acre 
of  land  for  ever,  with  the  mills  erected  thereon  ;  one-fourth 
of  the  grist-mill,  and  one-third  of  the  saw-mill,  and  that  he 
supposed  the  said  contract  was  completely  finished  and  car- 
ried into  effect. 

The  latter  examination  is  more  full  and  circumstantial 
than  the  former,  but  is  not,  I  think,  so  essentially  variant, 
as  to  discredit  the  witness.  There  is,  to  me,  internal  evi- 
dence arising  from  the  nature  of  the  establishment,  and  the 
acts  of  the  parties,  fortifying  the  conclusion,  that  it  was  the 
intention  of  the  parties,  that  so  much  of  the  water  of  the 
Saghquate  creek,  as  was  necessary  for  the  use  of  the  mills, 
should  be  permanently  appropriated  to  that  object.     A  con- 


STATE  OF  NEW-YORK.  107 

trary  conclusion  would  lead  to  great  doubt   and  uncertain-     alraxy, 
ty.     If  the   appropriation  was  considered  as  coextensive    v_^_'  _^_j 
with  the  necessity  that  at  first  existed  for  mills  at  that  place,       Wetmore 
its  termination  would  depend  upon  mere  matter  of  opinion.  White  &  White. 
If,  with  the  duration  of  the  mills  first  erected,  doubts  might   ——————— 

arise  to  what  ^extent  repairs  might  be  made,  for  the  pur-  *  108 

pose  of  continuing  the  old  mills ;  and  to  say  that  they 
should  be  suffered  to  go  to  decay,  without  any  repairs, 
would  be  doing  violence  to  the  understanding  of  the  par- 
ties. Public  accommodation,  and  private  emolument,  were 
probably  the  primary  inducements  for  building  the  mills, 
and  diverting  the  water  ;  the  same  reasons,  for  any  thing 
that  appears,  now  exist  for  their  continuance. 

The  conduct  of  White,  in  not  disclosing  to  Wetmore,  at 
the  time  of  selling  the  mills,  his  claim  of  restoring  the  wa- 
ter to  its  original  channel,  his  sleeping  so  long  upon  this 
claim,  and  permitting  the  appellant  to  expend  his  money, 
in  repairing  and  rebuilding  the  mills,  were  unconscientious, 
and  form  strong  grounds  for  the  interposition  of  a  court  of 
equity.     2  Atk.  83.f  f  Eaat-Itidia 

It  is  true,  the  respondent  Hugh  White,  swears,  that  he  y°™Jg™v  *' 
verily  believes,  he  apprized  Wetmore  of  his  claims,  before 
the  mills  were  taken  down  or  destroyed.  This  I  do  not 
think  entitled  to  much  weight.  If  the  fact  would  warrant 
it,  he  ought  to  have  sworn  positively,  and  not  merely  as  to 
his  belief.  Besides,  it  is  rendered  highly  improbable  by 
his  acquiescence  for  five  years  together.  Much  was  said 
on  the  argument,  respecting  the  injury  which  the  diver- 
sion of  the  water  would  occasion  to  the  respondents'  mea- 
dows, and  much  of  the  testimony  in  the  cause  was  point- 
ed to  that  object.  This  testimony  is  vague,  uncertain, 
and,  in  my  opinion,  irrelevant.  If  testimony  of  this  kind 
was  proper  at  all,  as  furnishing  a  clew  to  the  intent  and  un- 
derstanding of  the  parties,  it  should  have  been  confined  to 
the  time  when  the  contract  was  made  ;  and  on  that  subject, 
we  have  the  estimation  of  White  himself;  for  it  appears, 
from  the  testimony  of  Reardsleij,  *that  he  considered  the  *  109 


109 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


|  Lacon  v.  Jler 
tins. 


water  of  so  little  use  to  him,  and  the  establishment  of  the 
mills  so  unpromising,  in  point  of  profit,  that  he  offered  to 
Wctmore       give  the  appellant  and  Beardsley  the  use  of  the  water  for 
White  &  White.  everi  together  with  a  barrel  of  pork,  if  they  would  build  a 

grist-mill  and  saw-mill  alone,  and  he  to  have  no  concern 

with  them. 

The  appellant's  claim  resting  altogether  upon  parol  con- 
tracts, it  becomes  necessary  to  examine  whether  any  ob- 
stacle to  relief  is  interposed  by  the  statutes  for  the  preven- 
tion of  fraud.  I  think  there  is  not.  It  is  an  established 
rule  in  equity,  that  a  parol  agreement,  in  part  performed, 
is  not  within  the  provisions  of  the  statute.  1  Fonb.  182. 
and  the  cases  there  cited.  3  Atk.  4.f  To  allow  a  statute, 
having  for  its  object  the  prevention  of  frauds,  to  be  inter- 
posed in  bar  of  the  performance  of  a  parol  agreement,  in  part 
performed,  would  evidently  encourage  the  mischiefs  the  le- 
gislature intended  to  prevent.  Money  laid  out  in  improve- 
ments, is  considered  a  part  execution  of  a  contract.  Pow* 
on  ConU  296.  So,  also,  possession,  delivered  in  pursuance 
of  an  agreement,  is  such  a  degree  of  performance  as  to 
take  a  contract  out  of  the  statute.  Ibid.  299.  Payment 
of  the  consideration  money  has  always  been  held  as  a  part 
performance.  3  Atk.  4.J 

The  case  before  us,  I  think,  falls  clearly  within  these 
rules.  The  consideration  money  has  been  paid,  possession 
taken,  and  valuable  improvements  made.  I  can  therefore 
see  no  objection  against  granting  the  appellant  such  relief 
as  will  quiet  him  in  the  permanent  enjoyment  of  the  water, 
for  the  use  of  the  mills,  to  the  extent  the  same  was  used 
and  enjoyed,  at  the  time  he  purchased  them  from  the  re- 
spondent, Hugh  *White.  This  is  sufficiently  certain  and 
definite,  for  a  decree  for  a  specific  performance. 

I  am,  therefore,  of  opinion,  that  the  decree  of  the  court 
of  chancery  ought  to  be  reversed. 


■f  Lacon  v 
tins. 


Mer- 


*  110 


Judgment  of  reversal  unanimously. 


STATE  OF  NEW-YORK.  no 


Paschal  N.  Smith  against  Daniel  Williams. 

IN  error  on  a  bill  of  exceptions  tendered  and  sealed   at  An  owner  of  a 

the  trial  of  a  cause  upon  a  policy  of  insurance,  on  the  body  for  more  °tj!an 

of  the  ship  Prosper,  in  which  Williams,  the  now  defendant,  t\l[  antwurabie 

was    plaintiff   below.     The   case,  as  stated  in  the  New-  line,rc.s\  iu  1,er; 

1  7  Judicial   acts  of 

York  Term  Reports,  vol.  2.  from  the  first  to  the  fourth  page  foi'Lisn  tribunal! 

-  are  prima  facie 

inclusive,  is  accurately  detailed,  in  all  respects  but  one.      It  to  be    deemed 
is  there  mentioned,  in  page  4.  that  the  vessel  sold  under  fore  no  inference 
the  attachment  for  $8,400,  instead  of  38,500  reals  of  vel-  gainst  themf  ** 
Ion.     In  the  opinion,  however,  of  Thompson,  J.  page   19. 
the  sums  are  correctly  specified. 

The  error  now  relied  on  was,  that  the  judge  at  nisi  pri- 
us,  in  conformity  to  the  decision  of  the  supreme  court,  ru- 
led the  now  defendant  to  have  an  insurable  interest  in  the 
vessel,  to  the  extent  of  the  sum  he  paid  for  her,  though 
she  was  then  bottomed  for  a  larger  amount,  and  that,  un- 
less he,  at  the  time  of  effecting  the  policy,  knew  of  the 
lien  upon  her,  he  had  a  right  to  a  verdict  for  the  value  in- 
sured,  after  deducting  the  price  at  which  the  vessel  sold. 

Thompson,  J.  assigned  the  reasons  of  the  determina- 
tion, as  they  are  given  in  2  New-York  Term  Reports,  19, 
20,  21. 

Harison,  for  the  plaintiff.  The  question  now  before  the 
court  is,  whether  a  man  buying  a  vessel,  bottomed  for 
more  than  her  value,  has  an  insurable  ^interest ?     Where  *  111 

a  ship  is  hypothecated,  an  owner  can  insure  only  his  sur- 
plus interest,  beyond  the  amount  of  the  lien.  Here  he 
had  none.  His  being  a  bona  fide  purchaser  does  not  alter 
the  question.  He  takes  the  title  of  his  vendor,  and  stands 
exactly  in  his  situation.  Therefore,  as  to  the  effect  of  the 
bottomry,  Delavigne  and  Willliams  are  to  be  considered  as 
one  person,  and  the  property  equally  affected  by  the  lien, 
whether  in  the  hands  of  one  or  the  other.     It   is  like  the 

v  n 


Ill  CASES  IN  ERROR  IN  THE 


ALBANY,       common  case  of  a   purchase   of  a  chattel  from   an   appa» 
Feb.  iw)5^    rent  0.vnel%     The  vendee,  unless   it  be   sold   in  a   market 
Smith  overt,  takes  it  subject  to  the  rights  of  third  persons.     The 

Williams.  defendant,  therefore,  could  acquire  no  greater  interest  un- 
der  the  sale,  than  that  which  Delcroigne  could  dispose  of; 
that  is,  the  surplus  value  beyond  the  hypothecation.  To 
the  extent  of  the  bottomry  bond,  the  holder  of  the  bond 
is  owner  of  the  vessel ;  and  herein  it  differs  from  a  mort- 
gage. This  will  appear  by  adverting  to  a  bottomry  bond, 
which  is,  in  effect  a  species  of  insurance,  nay,  its  twin 
brother.  In  the  former,  the  money  is  advanced  before  the 
loss  ;  in  the  latter,  after.  In  either  case,  the  original  owner 
Is  in  case  of  accident,  equally  secure,  as  the  money  is 
,  like  a  mortgage,  to  be  returned.  By  payment  of  a 
iss,  an  insurer  becomes  a  purchaser;  so,  on  a  bottomry, 
wbi  h  is  nothing  mure  than  an  anticipated  insurance,  the 
lender,  on  making  the  advance,  acquires  the  property  to 
the  amount  of  the  money  he  pays.  Consequently,  the 
original  owner  cannot  have  any  interest,  excepting  that 
which  remains  beyond  the  extent  of  what  he  borrows.  It 
follows,  therefore,  that  he  should  not  be  permitted  to  in- 
sure more  than  that  excess.  A  ^contrary  doctrine  would 
#  112  be  to  tolerate  double  insurances,  and  open  a  wide   door   to 

.fraud.  A  man  may  take  up  two-thirds  of  the  worth  of  his 
ship  on  bottomry;  if  he  may  also  cover,  by  an  insurance, 
her  full  value,  he  would,  in  case  of  a  loss,  put  into  his 
pocket,  the  two-thirds  he  had  borrowed.  This  would  be  a 
temptation  to  dishonesty.  Reason  and  policy,  therefore, 
require,  that  only  the  excess  of  value,  beyond  the  sum 
for  which  a  vessel  is  bottomed,  should,  in  the  original  own- 
er, be  deemed  an  insurable  interest.  For  the  lender  of  the 
money  advanced,  is,  to  the  extent  of  the  loan,  the  actual 
owner.  In  cases  of  jettison,  he  is  bound  to  contribute.  2 
VaL  19.  2  Emer.  504.  citing  Le  Guidon,  c  19.  art.  5.  This, 
it  may  be  said,  is  the  law  of  France,  but  that  the  rule  in 
England  is  different.  It  is  not,  however,  on  that  account 
to  be  preferred  by  us.     The  doctrine,  from  the  authorities 


STATE  OF  NEW-YORK.  112 

tiited,  is  that  of  the  general  commercial  code,  drawn  from  AI/RANY, 
the  oldest  books  in  the  world,  and  resting  upon  the  sane-  ■- '  -»*' 
tion  of  various  nations  in  all  ages,  not   upon  the  maritime  Smith 

ordinances  of  any  particular  country.  For,  if  the  vessel  William* 
perishes,  the  lender  on  bottomry  must  be  the  sufferer  ;  if  """" ~" 
she  be  saved,  he  will  be  the  gainer,  and  he  ought,  then, 
to  contribute,  which  can  be  only  as  owner.  As  a  species 
of  double  insurance,  the  policy  now  before  the  court  is  ne- 
cessarily void.  2  Val.  61.  1  Emer.  236,  237.  For,  on  a 
contract  which  is  purely  one  of  indemnity,  a  clear  and  cer- 
tain gain  of  the  sum  insured,  can  never  be  allowed  to 
take  place.  It  is  not  correct  to  argue,  that  the  insurance 
will  be  void,  or  not,  according  as  the  fact  of  the  bot- 
tomry was,  or  was  not,  known  to  the  insured.  Igno- 
rance, in  many  instances,  furnishes  no  pretext  for 
^upholding  the  policy.     If  a  vessel  be  not  seaworthy,  the  *  113 

insurance  will  be  void,  though  it  was  not  known  that  she 
was  so ;  because,  the  concealment  of  a  material  fact, 
though  innocently  done,  vacates  the  agreement,  it  being 
the  duty  of  the  insured,  u  from  motives  of  common  pru- 
dence, to  inform  himself  of  every  fact  and  circumstance 
which  may  throw  the  smallest  light  on  the  nature  and  perils 
of  the  proposed  adventure."  Marsh.  347.  Millar ',  40,  41. 
46,  47.  97.  to  the  same  point.  It  is  necessary,  now,  to 
proceed  to  another  foundaiion  of  the  law  of  insurance, 
which  presents  to  the  recovery  an  obstacle,  which,  it  is 
conceived,  is  insurmountable.  Every  policy  bona  fide 
effected,  contains  an  implied  engagement,  that  in  case  of 
abandonment,  the  underwriter  shall  be  entitled  to  receive 
the  subject  matter.  It  is  an  essential  part  of  the  contract, 
that  the  benefit  of  abandonment  shall  be  saved  to  the  in- 
surer. Otherwise,  a  loss  not  absolute  in  itself,  but  a  mere 
technical  total,  on  which  two-thirds  may  be  recovered, 
would  be  totally  lost  to  the  underwriter.  Tested  by  this 
rule,  the  policy,  now  litigated,  fails  in  an  essential  ingre- 
dient. The  bottomry,  though  latent  and  unknown,  de- 
stroyed that  right  to  the  property  on  abandonment,  which 


US 


CASES  IN  ERROR  IN  THE 


ALBANY, 
Feb   1805. 


*  114 


was  the  basis  of  the  insurer's  undertaking,  and  therefore 
avoided  the  policy.  Any  thing  which  takes  away  from  the 
underwriter  those  rights,  on  having  of  which  he  is  sup- 
posed to  have  entered  into  the  contract,  vacates  the  agree- 
ment. A  previous  direction  not  to  pursue  one  of  three 
routes,  on  a  voyage,  where  it  was  usual  to  leave  the  whole 
three  to  the  discretion  of  the  captain,  was  held  to  prevent 
a  recovery,  because  the  underwriter  made  his  calculation, 
on  *the  advantage  of  the  captain's  judgment  as  to  all. 
Middlewood  v.  B  lakes,  7  D.  &  E.  162.  The  same  princi- 
ple ought  to  govern  on  the  present  occasion. 


Riggs  and  Benson,  contra.  Though  the  position,  that  a 
purchaser  of  a  chattel  takes  it  liable  to  all  the  encumbrances 
which  affect  it  in  the  hands  of  the  seller,  were  correct,  still 
it  may  have  further  exceptions,  than  the  one  arising  from 
a  sale  in  market  overt.  Liens  may  become  invalid  from 
the  laches  of  the  persons  who  hold  them.  As  to  markets 
overt,  what  are  they  in  this  country  ?  Streets,  for  wood 
and  hay,  and  other  articles.  Shops  and  warehouses,  for 
goods.  Wharves,  for  ships.  If  property  is  intrusted  to 
another  in  such  a  manner  that  he  may  dispose  of  it,  a  bona 
jide  sale  is  good.  It  is  incumbent  on  the  holder  of  a  bot- 
tomry bond  to  take  possession  of  the  vessel  on  her  arrival 
at  her  first  port.  If  he  do  not,  it  is  a  waiver  of  his  lien, 
and  the  vessel,  in  the  present  instance,  being  bona  jide  sold 
in  a  market  overt,  for  such  a  wharf  must  be  considered, 
the  title  of  the  purchaser  is  good  against  all  the  world.  It 
is  contended,  however,  that  he  who  borrows  on  bottomry, 
has  not  in  his  vessel  any  insurable  interest,  except  for  her 
surplus  value  beyond  the  sum  taken  up.  There  is  no  such 
rule  in  our  law,  nor  in  that  of  England,  for  none  such  can 
subsist.  Suppose  an  owner  of  a  ship  in  a  foreign  port,  bot- 
toms her  for  a  sum,  which  he  lays  out  in  masts,  yards, 
and  repairs,  to  enable  her  to  prosecute  the  voyage  ;  is  not 
the  vessel  enhanced  in  value  by  so  much  as  is  thus  actually 
converted  into  ship?     And  cannot  the  owner  insure  that, 


*  115 


STATE  OF  NEW- YORK.  ltt 

into  which  the  money  is  thus  changed  ?  It  is  true,  the  ALBANY, 
lender  on  hypothecation  *has  but  a  special  insurable  in- 
terest, which  he  is  bound  to  particularize.  Therefore, 
that  of  the  owner  remains  as  before.  The  doct%ine  of 
double  insurances  does  not  apply  to  this  case.  It  supposes 
the  insured  to  have  been  the  borrower  of  the  money.  That 
is  not  so  here  ;  for  the  defendant,  Williams,  knew  not  it  was 
taken  up.  That  the  security  was  not  by  way  of  mortgage, 
if  it  makes  any  difference  in  the  question,  operates  in  our 
favour.  For  a  mortgage  passes  a  legal  interest  in  the  sub- 
ject. Bottomry  does  not ;  it  only  gives  a  right,  if  exercised 
in  due  time,  of  going  into  court  and  obtaining  process 
against  the  vessel.  The  difference  is  the  same  as  between 
judgments  and  mortgages.  The  first  give  a  lien,  but  no 
interest,  which  is  to  be  acquired  only  by  legal  proceedings, 
instituted  upon  them.  But  even  in  the  case  of  an  abso- 
lute assignment  of  a  ship,  if  in  the  nature  of  a  mortgage, 
the  mortgagor  is  deemed  the  legal  owner,  liable  for  the 
necessaries  and  repairs  of  the  vessel,  and,  until  posses- 
sion taken  by  the  mortgagee,  he  alone  is  entitled  to  sue 
for  the   freight   earned.     1  H.  Black.  117.(fl.)f     Can  it,  f  Chinnery  x. 

ii-iii  l  •  ii-        Blackburn*. 

then,  be  said,  that  the  mortgagor  has  not  an  insurable  in- 
terest ?  If  so,  why  has  not  the  contract  been  disaffirmed, 
and  the  premium  returned  ?  It  has  been  urged,  however, 
that  the  right  to  have  the  benefit  of  the  property  abandon- 
ed has  been  lost  to  the  insurer,  and  therefore  the  policy  is 
void.  Taking  it  for  granted,  as  has  been  insisted,  that  the 
now  defendant  acquired  by  his  purchase  no  tide,  but  what 
was  subject  to  the  lien  on  the  vessel,  as  he  was  a  bona 
fide  purchaser,  he  had  a  recourse  against  the  vendor,  and 
on  abandonment,  that  recourse  passed  witli  the  vessel  to 
the  insurer.     Besides,  the  idea  of  this  loss  of  *the  proper-  '    *16 

ty  insured,  proceeds  on  the  supposition  that  the  Consulada 
in  Spain  rendered  a  proper  judgment.  This  we  deny,  fcr 
we  contend  that  the  lien  by  the  bottomry  was  gone,  upon 
the  vessel's  sailing  from  the  port  of  her  first  arrival.  The 
lender  should  have  followed  the  ship,  demanded  his  money, 


116 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


Smith 

v. 

Williams. 


and  on  refusal,  have  applied  to  the  admiralty  for  process 
against  the  vessel.  It  is  not,  however,  true,  that  the  pro- 
perty has  been  lost  to  the  underwriter.  He  gets  the  amount 
of  what  it  sold  for,  deducted ;  and,  therefore,  obtains  the 
full  benefit  of  the  abandonment. 


Harisony  in  reply.  To  make  our  streets  and  wharves, 
markets  overt,  they  should  have  clerks,  and  records  of  the 
sales  made  in  them.  Those  are  the  ingredients  required 
by  law.  There  is  nothing,  therefore,  shown  to  do  away 
the  position,  that  the  defendant's  title  could  be  no  better 
than  his  vendor's.  If  so,  he  had  no  interest,  but  in  the 
surplus,  beyond  the  amount  of  the  bond.  Laying  out  on 
the  vessel  whatever  is  raised  on  bottomry,  does  not  in- 
crease the  interest  of  the  borrower.  For  it  is  at  the  ex- 
pense of  the  lender.  His  money,  not  that  of  the  insured, 
has,  in  case  of  loss,  been  expended.  To  sanction,  there- 
fore, the  present  policy,  would  be  in  fact  to  authorize  dou- 
ble insurances.  It  is  a  mistake  to  imagine  there  ought  to 
have  been  a  return  of  premium  to  justify  a  resistance  to 
the  suit,  or  rescind  the  contract,  as  it  is  called.  In  cases 
of  non-compliance  with  warranties,  the  premium  is  not  al- 
ways returned,  though  it  may  be  recovered  in  the  very 
action  where  the  policy  is  declared  to  be  void.  We  trust, 
therefore,  a  venire  de  novo  will  be  directed. 


#  njr  PPer  Curiam,  delivered  by  Lansing,  Chancellor.  It  has 

been  admitted  by  the  parties,  and  it  is  so  stated  in  the  bill 
of  exceptions  in  this  cause,  that  the  defendant  was  entitled 
to  have  recovered  in  the  court  below,  if  the  interest  in- 
tended to  be  covered  by  the  policy  was  insurable. 

It  has  also  been  admitted  in  argument,  that  the  intent  of 
the  parties,  deducible  from  the  policy,  was  to  constitute  it 
an  interest,  and  not  a  wager  policy,  and  the  only  questions 
on  which  the  opinion  of  the  court  is  required,  are,  1st. 
Whether  the  interest  of  the  obligee,  of  the  bottomry  bond., 
was  a  valid  lien,  and  such  a  one  as  would  be  enforced  by 


STATE  OF  NEW-YORK.  117 

the  maritime  law  ?  2d.  Whether  the  vessel  in  question,  ALBANY 
being  subject  to  a  bottomry  bond,  greater  in  amount  than  Feb- 1805* 
its  value,  was  insurable  by  the  defendant,  Williams  T  —  Sinkh"^ 

The  only  objections  which  have  been  urged  to  the  validi-       „T.  *- 

ty  of  the  bottomry  bond,  as  affecting  the  interests  in  con-  — — — 

troversy  between  the  parties,  are,  1st.  That  it  was  not  en- 
forced in  due  time  ;  2d.  That  as  the  defendant,  Williams, 
was  ignorant  of  its  existence  at  the  time  the  policy  was 
underwritten,  it  ought  not  to  vitiate  it,  as  having  been 
made  under  the  impression  of  mutual  error. 

As  to  the  objection  that  the  bottomry  bond  has  not  been 
enforced  in  due  time. 

The  policy  appears  to  have  been  made  on  the  13rh  day 
of  May,  1800,  on  a  voyage  from  New-York  to  Algiers, 
with  liberty  to  touch  at  Cadiz.  The  ship  was  purchased  in 
the  November  preceding  by  the  defendant,  Williams,  of  Ca- 
simir  Delavigne,  for  whom  a  bottomry  bond  had  been  ex- 
ecuted on  it,  by  procuration,  at  Amsterdam,  previous  to 
such  sale;  *but  no  other  circumstance  respecting  the  time  *  118 

when  such  bond  was  executed,  the  voyage  described  in  it, 
or  the  port  considered  as  the  home  port  of  the  ship,  as  to 
the  bottomry,  were  offered  in  evidence. 

It,  however,  appears,  that  the  bottomry  bond  was  given 
for  6,500  dollars,  which  is  1,500  more  than  the  valuation  of 
the  ship  in  the  policy,  and  that  she  was  sold  at  Cadiz,  by 
order  of  the  Royal  Consulado,  who,  it  is  not  contended, 
had  not  a  competent  jurisdiction,  and  who  acted  judicially 
on  the  occasion. 

The  judgments  of  foreign  courts,  having  competent  ju- 
risdiction, have  always  been  considered  prima  facie,  as 
binding  in  the  points  on  which  they  have  expressly  adjudg- 
ed. The  period  of  the  inception  of  the  contract,  on  the 
voyage  which  was  the  object  of  it,  not  having  been  disclo- 
sed, for  aught  that  appears,  it  may,  though  made  at  Am- 
sterdam, as  it  was  done  by  procuration,  have  been  execu- 
ted the  day  before  the  sale  to  the  defendant,  and  may  have 
attached  to  the  voyage  insured,   terminating  it  at  Cadiz. 


113 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


*  119 


The  ship  was  at  New-York,  at  the  time  of  the  sale,  and 
there  is  no  proof  that  she  left  that  port,  till  she  sailed  oft 
the  voyage  insured.  Hence  there  is  no  ground  legally  t<* 
infer  a  laches  in  enforcing  the  lien  created  by  the  bottomry 
bond. 

If  the  voyage  to  Cadiz,  was  the  voyage  insured,  the  in- 
termediate transfer  to  the  defendant,  Williams,  certainly 
could  not  avoid  the  bond,  or  impair  the  rights  of  the  obli- 
gor. For  if  a  transfer,  pending  the  voyage,  constituted 
an  avoidance,  the  lien  supposed  to  be  created  by  the  bot- 
tomry bond,  must  be  completely  in  the  power  of  the  obli- 
gor to  defeat,  whenever  *it  comported  with  his  views. 
This  would  lead  to  consequences  too  clear  to  require  eluci- 
dation. 

As  to  the  2d  objection.  The  insurer  is  a  perfect  stran- 
ger to  the  subject  insured  ;  whatever  relates  to  it,  must  be 
considered  as  peculiarly  resting  in  the  knowledge  of  the  in- 
sured, and  the  law  imposes  it  on  him  to  acquire  a  competent 
information  respecting  it.  This  is  a  salutary  and  well  esta- 
blished rule.  For  how  is  it  possible  to  determine  with  uner- 
ring certainty,  the  exact  state  of  intelligence  he  possessed  ? 
Or  what  portion  of  the  ignorance  he  possesses,  is  to  be  at- 
tributed to  his  want  of  exertion,  or  to  his  wish  of  conceal- 
ment of  the  latent  defects,  which  may  affect  his  interest  ? 
If  he  does  not  possess  the  full  knowledge  of  every  cir- 
cumstance respecting  it,  involving  the  interests  of  others, 
it  may  be  his  misfortune,  but  it  must  legally  be  imputed  to 
him  as  a  fault. 

Every  reasonable  intendment  is  to  be  admitted  in  support 
of  the  judgment  of  the  Royal  Consufado.  The  defendant, 
Williams,  was  on  the  spot,  clothed  with  the  powers  of  owner 
and  master.  He  was  interested,  in  the  one  capacity,  to 
vindicate  his  right  of  property  ;  in  the  other,  as  agent  for 
the  concerned,  to  repel  any  illegal  claims :  He  had  an  op- 
portunity to  make  a  defence.  In  all  events,  if  the  judg- 
ment was  examinable,  he  might  have  furnished  the  reasons 


STATE  OF  NEW-YORK. 


119 


and  proofs  to  warrant  it ;  that  this  had  not  been  done,  af- 
fords a  strong  inference  that  it  was  not  in  his  power. 

The  second  question  is  important  as  it  respects  the  gene- 
ral interests  of  commerce,  and  it  is  peculiarly  desirable 
that  a  decision  of  the  court  should  satisfactorily  put  it  at  rest. 

^Whenever  the  bottomry  and  the  policy  are  coextensive, 
as  to  voyage  and  time,  no  collision  can  arise.  If  the  ship 
arrives  at  its  port  of  destination  in  safety,  the  policy  is  sa- 
tisfied ;  but  the  lien  created  by  the  bottomry  still  exists.  If 
the  ship  had  been  injured  by  any  of  the  perils  insured 
against,  so  as  to  entitle  the  insured  to  an  average  loss,  it 
could  not  affect  the  interests  of  either  of  the  parties  to  the 
bottomry  bond.  But  if  the  ship  perishes  totally;  or  if  a 
technical  loss  is  sustained  before  she  arrives  at  her  port, 
the  insured  would  recover,  if  the  policy  is  valid,  without 
interest.  For  the  value  of  the  ship  being  covered  by  the 
bottomry,  the  obligee  cannot  recover  the  money  advanced 
on  it  j  his  right  to  it  ceasing  with  the  destruction  of  the 
ship,  or  the  necessary  dereliction  of  the  voyage.  To  this 
intent,  the  obligee  in  the  bottomry  bond  must,  therefore, 
be  considered  as  owner,  for  he  is  to  receive  nothing  unless 
the  voyage  is  made. 

If  the  bottomry  interest  existed  before  the  policy  was 
underwritten,  and,  instead  of  being  limited  to  the  ulterior 
port  of  destination  described  in  the  policy,  was  to  be  en- 
forced at  any  intermediate  port  at  which  the  ship  might 
touch  ;  or,  if  the  ship  was  so  much  deteriorated  as  to  con- 
stitute it  a  technical  total  loss,  at  the  port  of  her  destina- 
tion, no  abandonment  could  be  made  with  effect,  and  the 
insurers  would  be  entangled  with  difficulties,  which  they 
had  no  reason  to  calculate  upon,  at  the  time  of  making  the 
policy. 

The  policy  of  insurance,  is  always  considered  as  a  mere 
contract  of  indemnity,  and  the  policy  of  the  maritime  law 
is  avefse  to  any  devices  which  may  weaken  the  inducement 
to  exertions,  for  saving  either  ship  or  cargo  by  the  owner, 
master  or  mariners,  and  *operate  as  an  incentive  to  fraud  ; 

9  *> 


ALBANY, 

Feb.  1805. 


*    120 


*    121 


til 


CASES  IN  ERROR  IN  THE 


ALBANY, 
Feb.  1805. 


Smith 

v. 

Williams. 


1 2  Emer.  386, 

396. 

*  2  Val.  61. 


§  Conference 
Vordovnance, 
Louis  XIV.  7, 


122 


but  in  the  first  case  put,  it  would  operate  to  place  the  value 
of  the  property  lost  by  the  obligee  in  the  bottomry  bond: 
in  the  pocket  of  the  insured. 

We  find  no  express  authorities  on  this  subject,  in  our 
own,  or  the  British  courts ;  but  if  the  positions  laid  down 
by  Emerigon\  and  Valin,%  which  have  been  cited,  are  to 
be  received  as  correct,  they  would  fully  establish  the  point, 
that  the  value  covered  by  the  bottomry  is  not  an  insurable 
interest. 

To  the  objections  which  have  been  urged  against  receiv- 
ing the  law  from  Valin  and  Emerigon,  on  their  authority, 
it  may  be  observed,  that  their  positions  on  this  subject,  ap- 
pear untinctured  by  local  considerations  ;  and  if  the  mind 
assents  to  their  correctness,  there  can  be  no  reason  for  re- 
sisting truth,  from  whatever  source  it  may  be  derived. 

The  treatise   of   Valin,  is  professedly  a  commentary  on 
the  ordinances  of  Louis  XIV.     But  in  illustrating  the  doc- 
trines they  sanction  and  enforce,  it  refers  to  the  antecedent 
usages  which  had  obtained  in  the  several  nations   of  Eu~ 
rope ;  the  ordinances  of  the  free  Imperial,  French,  Italian, 
and  Hanseatic  towns ;  the   city  of  Wisbuy  on  the  Baltic ; 
imperial  and  royal  ordinances ;  and,  among  the  rest,  some 
of  their  principles  are  said  to  have  been  deduced  from  the 
de  ordinances  of  Eleanor,^  wife   of  Henry  II.  king  of  En- 
gland, then  Duchess  of  Guyenne,  one  of  the  fiefs  held  of 
the  crown  of  France,  and  of  consequence,  in  the  spirit  ol 
those  times,  the  duchess  was  considered  as  one  of  its  vas- 
sals.    These  ordinances  were  afterwards  confirmed  and  en- 
larged, according  to  the  French  writers,  by  her  son,  Ri- 
chard I.  king  of  England,  who  was  also  Duke  of  Guyenne, 
and,  of  course,  stood  in  the  *same   relation  to  the  crown 
of  France  with  his  mother.     But  the  English  respect  them 
as  the  production   of  that  king.     This  is  merely  intimated 
by  way  of  illustrating  the  origin  of  the  usages  which   in-, 
fiuence  the   modern  commercial  regulations,  and  the  little 
regard  which  has  been  paid  to  the  authority  which  promul- 
gated them  j  for,  in  this  instance,  on  the  foot  of  authority, 


STATE  OF  NEW-YORK.  *& 

•they  would  probably  have  been  indignantly  rejected  by  the  ALBANY, 
French,  as  the  act  of  one  of  the  feudatories  of  the  mo-  Feb- l80:>- 
narchy.  Smith 

The  laws  of  Gleron  could  receive  no  sanction  in  France ;  Williams, 
and,  perhaps,  not  in  England,  from  the  authority  of  King  — — — — — 
Richard,-  and  it  has  even  been  doubted,  from  the  language 
in  which  they  are  published,  and  from  the  places  mentioned 
in  them,  whether  their  object  extended  beyond  the  duchy 
of  Guyenne.  There  were  unfavourable  circumstances 
arising  from  the  relative  situation  of  the  prince  who 
enacted,  and  the  princes  whose  subjects  received  them, 
to  repel  their  introduction,  even  on  the  ordinary  ground  of 
public  utility  and  convenience ;  and  yet  it  appears,  from 
the  French  writers,  that  they  are  considered  as  forming 
part  of  their  maritime  code. 

The  laws  of  Oleron  have  been  mentioned  as  a  compila- 
tion, and  probably  were  so.  They  must  have  obtained  the 
authority  attached  to  them,  in  consequence  of  their  intrinsic 
worth,  and  the  estimation  in  which  they  were  held,  to  re- 
gulate the  intercourse  between  the  merchants  of  different 
nations. 

If  such  their  origin,  and  such  the  steps  in  which  we 
trace  the  progression  of  these  celebrated  codes,  from  an- 
cient to  modern  times,  why  should  the  inquiry  whence  they 
originated,  be  permitted  to  banish  from  our  country,  the 
well  established,  salutary  usages  *of  trade,  sanctioned  by  *  12* 

the  long  experience  of  the  European  nations  ? 

The  English  courts  consult  the  FrencJi  authors,  on  ge- 
neral maritime  law.  Park  observes,  that  the  ordinances  of 
Louis  XIV.  "  are  an   excellent  body  of  sea-laws,  to  the 

merit  of  which  all  Europe  has  borne  testimony  ;"f  and  he  \  Park's  Intro. 

,  39. 
remarks,  that  they  had  the  good  fortune  to  meet  with  a  la- 
borious commentator  in  Falin,  who,  he  says,  "  being  tho- 
roughly sensible  of  the  advantages  which  his  country  must 
necessarily  derive  from  such  an  excellent  code,  has,  with  a 
degree  of  labour  and  industry  which  excite  our  admira- 
tion, and  which  are  highly  deserving  of  imitation,  placed  it 


1*3  CASES  IN  ERROR  IN  THE 

ALBANY,      in  the  most  favourable  point  of  view ;  has  cleared  up  every 
v^^v^s.      obscurity,  by  tracing  their  laws  to  their  ancient  sources," 

Smith  &C. 

Williams.  Of  Emerigon\  he  also  speaks  in  terms  of  high  approba- 

\ tion,  and  of  the  "  infinite  labour,  unwearied  study  and  re- 

io.  flection"  with  which  he  had  made  his  collection. 

All  our  laws  relative  to  insurances  and  bottomry,  are  de- 
rived to  us,  from  similar  sources,  and  I  rather  think, 
though  I  speak  only  from  general  recollection,  not  having 
examined  the  point,  that  few  other  than  restraining  statutes 
exist  in  Britain  respecting  them. 

This  case  has  been  likened  to  the  case  of  a  judgment  and 
mortgage ;  but  in  both  cases,  though  the  existence  of  the 
lien  must  necessarily  terminate  by  the  operation  of  a  title 
paramount,  or  with  the  destruction  of  the  subject  on  which 
it  attaches,  the  debt  survives.  The  right  of  the  holders  of 
those  securities,  may  be  more  circumscribed  by  events  of 
that  description,  as  to  object,  but  retain  all  their  energy  as 
*  124-  to  the  person  *and  remaining   property  of  die  judgment 

debtor,  or  mortgagor,  and  the  safety  of  the  property  bound 
by  the  judgment  or  mortgage,  does  not  form  the  es- 
sence of  the  debt.  Not  so  with  a  bottomry  interest,  which 
perishes  with  the  ship  to  which  it  attaches. 

It  will  be  perceived,  that  I  have  not  confined  myself  pre- 
cisely to  the  line  in  which  this  case  has  been  discussed,  or 
pursued  it  in  the  extent  to  which  it  was  protracted  ;  that  I 
limit  my  opinion  simply  to  the  points,  that  there  is  no 
ground  to  question  the  judgment  of  the  Royal  Consulado,  and 
that  the  owner  of  a  ship,  covered  by  a  bottomry  bond,  to  an 
amount  beyond  her  value ,  ha's  not  an  insurable  interest. 

I  am  therefore  of  opinion,  that  the  judgment  of  the  siu 
pre  me  court  be  reversed. 

Judgment  of  reversal. 


STATE  OF  NEW-YORK.  124 

Abraham  Bloodgood,    Appellant,  against  Martinus 
Zeily,  Respondent. 

*  125 
THE   respondent,  by  his  bill,  in  the  court  below,  set    If  after  a  mort- 

r  gage   be  forfeit- 

forth,  that  in  1783,  he  purchased  from  the  appellant  a  tarm,  ed,  and  execu- 

then  lying  in  the  county  of  Albany,  called  the  Clabergh,  for  a'  j!ldgment  're- 

which  he  was  to  give  450/.     That  of  this  sum  he  paid,  on  j£nd™  a  convey* 

the  purchase,  100/.  in  *money,  25  skepples  of  wheat,  and  J£j£  se0cfurteh* 

8  cxvt.  of  flour,   executing,    for  the    residue,  a  bond  and  mortg*Jni|d*;j 

mortKaee,  dated  the  24th  of  February,  1784,  being  the  day  other  property, 

°  °   '  \  r  redeemable     on 

after  the  date  of  the  conveyance  to  himself.     That  the  ap-  paying  a  certain 

•  i_     i        j  j  sura  :lt  a  future 

pellant  having  obtained  judgment  on  the  bond,  sued  out,  dayj  sucn  con. 
on  the  1st  of  September,  1789,  a/,  fa.  directing  a  levy  to  SfrfS?^ 
be  made,  for  510/.  debt  and  costs,  which  was  accordingly  «£  f^*^; 
done.     That  a  sale  did  not  actually  then  take  place,  be-  and  be  deemed 

"  *  *  m      a  mortgage,  and 

cause  the  respondent,  on  the  19th  of  the  same  month,  in  not  a  defeasible 

r  •  i  u      purchase;  there- 

erder  to  obtain  a  longer  time  for  payment,  assigned  to  the  fo,.e>if  after  lapse 

.  i.   •         i  •  r       ^t.  1  .     .~   of  the  day,  for 

appellant,  as  an  additional  security,  lor  the  money  due  to  rcpayment)  the 
him,  class-rights  for  1,400  acres  of  land,  located  at  the  Jj^tSBS 
south  end  of  Cayuga  lake,  with  a  power,  authorizing  him  ^C£*££ 
to  take  out  letters  patent,  in  his  own  name  ;  and  the  appel-  {JjJjJJj?0^ 
lant,  at  the  same  time,  executed  to  the  respondent,  by  way  grantor  will  be 

,        .f    ,  entitled     to    an 

of  defeasance,  a  bond  for  300/.  conditioned,  that  it  the  re-  account,  and  the 
spondent,  his  heirs,  &c.  should  pay  the  appellant,  his  heirs,  the  land  was 
&c.  250/.  within  one  year  from  the  date  thereof,  then  the  Jf^lwSJ; 
assignment  of  the  class-rights  should  be  void.  The  bill  J^a^IS 
then  stated,  that  the  appellant,  in  October,  1790,  under  an  tied^to  ^redit, 
execution  issued  upon  his  former  judgment,  sold  the  Cla-  not  demand   a 

r  i  •     •  i-  l    redemption,  for 

bergh  farm,  and  having  himself  purchased  it  in,  directed  more  than   six 

"  .  ,  r     ,  j  years    after  the 

the  sheriff  not  to  sell  the  personal  estate  of  the  respondent,  day  of  ,.epay_ 
as  he,  the  appellant,  was  fully  satisfied.  That  immediate-  jgjj?"* 
ly  after,  the  appellant  declared  to  the  respondent,  he  knew  «j-^m4 

mortgage  bond, 
the  court  will  not  open  the  account  on  the  mortgage,  though  there  be  some  degree  of  irregu- 
ErityTn the  accounts,  if  from  the  whole  they  appear  to  be  iu.rly  closed.  Query  if  an  agree- 
ment by  a  mortgagee,  who  has  bought  in  the  mortgaged  premises  to  divide  w  th  the  mortga- 
gor,  the  surplus  pWuce  of  a  resall,  after  deducting  debt  and  costs,  .1  he  will  : show  he  best 
lands,  so  as  to  get  for  the  estate  a  given  sum,  be  a  valid  agreement  ;  or  whether  the  showing 
the  lands,  be  a  condition  precedent ;  Query. 


125 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


*  126 


of  two  persons,  who  were  desirous  of  purchasing  the  farm, 
which  he  meant  to  sell,  for  500/.  and  therefore,  requested 
the  respondent  to  show  them  the  best  lands,  it  being  his 
intention  to  divide  with  the  respondent,  the  surplus  which 
"  might  arise  after  payment  of  debt,  interest  and  costs  ; 
therefore,  to  avoid  the  expense  and  trouble  of  a  deed  from 
*the  sheriff,  the  respondent,  at  the  instance  of  the  appel- 
lant, conveyed  the  farm  to  him,  in  consequence  of  which, 
he  entered  into  possession,  and  sold  the  property  for  500/.  to 
one  Henry  Effener,  to  whom  the  respondent  had,  by  the  ap- 
pellant's request,  shown  the  estate.  That  letters  patent  had 
been  obtained  by  the  appellant,  in  his  own  name,  for  the 
class-right  lands,  which  were  worth  4,000/.  The  bill  then 
set  forth  the  usual  application  for  a  settlement,  offering  to 
allow  all  reasonable  costs,  &c.  if  the  appellant  would  ac- 
count for  the  proceeds  of  the  sale  to  Effener,  and  reconvey 
the  1,400  acres,  which  it  concluded,  by  praying  to  be  de- 
creed. 

The  appellant,  by  his  answer,  admitted  the  purchase  of 
the  Clabergh  farm,  its  subsequent  sale  under  the  execu- 
tion, and  his  buying  it  in,  as  alleged ;  but  the  sum  direct- 
ed to  be  levied,  or  the  amount  precisely  due,  he  could  not, 
he  said,  recollect.  He  acknowledged  also,  the  assignment 
of  the  class-rights,  his  taking  out  the  letters  patent  in  his 
own  name,  the  executing  to  the  respondent  the  bond  for 
300/.  conditioned  as  set  forth,  and  selling  the  farm  to  Ef- 
fener ;  but  he  insisted  the  assignment  of  the  class-rights 
to  have  been  in  consideration  of  100/.  therein  expressed, 
and  denied  that  it  was  made  as  a  security  for  payment  of 
the  debt  due  on  the  bond  and  mortgage ;  or  that  he  had 
any  communication  with  the  respondent,  after  the  sheriff's 
sale,  or  requested  a  conveyance  ;  on  the  contrary,  he  aver- 
red, that  he  received  a  deed  from  the  sheriff,  dated  the 
12th  September,  1791  ;  though  he  acknowledged  to  have 
sold  in  1796,  the  1,400  acres  of  class-rights,  to  Simeon  fie 
Witt,  esquire,  for  500/.  which  was  the  highest  price  that 
could  then  be  obtained. 


STATE  OF  NEW-YORK. 


*127 


*On  the  nature  of  the  assignment  of  the  classr-rights, 
whether  it  was  a  defeasible  purchase,  or  merely  an  addi- 
tional security,  as  both  parties  relied  on  the  facts  in  the  bill 
nnd  answer,  neither  examined  any  witnesses.  To  show, 
however,  an  adequacy  of  price,  in  the  consideration  stated  " 
in  the  answer,  the  president  of  the  senate  was  interrogated, 
and  he  deposed,  that  in  September,  1789,  the  value  of 
class-rights  was  from  five  to  10/.  per  100  acres.  That  in 
1790  and  1791,  he  located  13,000  acres,  for  about  two 
shillings  per  acre.  That  in  1792,  he  purchased,  for  100 
dollars,  a  lot  of  600  acres,  more  valuable  than  the  class- 
rights  in  question,  and  on  which  they  adjoined. 

To  establish  the  sum  due  on  the  Clabergh  farm,  at  the 
time  of  its  sale,  the  agreement  to  divide  the  surplus,  after 
satisfying  the  appellant,  the  subsequent  purchase  by  Ef- 
fener, and  the  liability  of  the  appellant  to  account  for  the 
value,  two  witnesses  were,  together  with  Effener  himself, 

examined. 

The  two  first  deposed,  they  were  present  when  the  pro- 
perty was  sold  by  the  sheriff;  that  the  appellant  acknow- 
ledged his  original  demand  was  only  500/.  from  which  were 
to  be  deducted  some  payments  received ;  one  to  the 
amount  of  100/.  which  had  not  been  credited.  That  the 
appellant  further  said,  if  the  respondent  would  show  the 
best  lands,  so  that  500/.  might  be  obtained  on  the  resale, 
he  should  have  the  whole  amount  of  what  might  remain, 
after  discharging  debt  and  costs. 

Effener  testified  that  the  respondent,  in  consequence  of 
a  written  request  from  the  appellant,  showed  him  the  Cla- 
bergh farm,  of  which  he  became  the  purchaser,  for  500/. 

Upon  these  facts,  his  honour  the  Chancellor  decreed, 
«•  that  the  accounts  between  the  parties,  relating  *to  the 
mortgage,  remained  closed,  the  mortgage  being  satisfied : 
but  inasmuch  as  it  had  not  satisfactorily  appeared  to  the 
court,  whether  the  100/.  proved  to  have  been  paid  by  the 
complainant,  to  the  defendant,  was  the  consideration  ex- 
pressed  in  the  assignment  of  the  clasvrights,  for  MP* 


ALBANY, 

Feb.  1805. 


*  128 


12B 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


Blood  good 

v. 

Zeily. 


acres,  or  another  sum  of  money  ;  and  inasmuch  as  that  as- 
signment was  considered  by  the  court,  as  an  additional  se- 
curity for  the  money  payable  on  the  mortgage,  and  made 
for  no  other  purpose  or  intent,  and  inasmuch  as  the  de- 
fendant has  admitted,  that  he  procured  letters  patent  for 
the  1,400  acres,  which  he  has  since  disposed  of;  and  as 
the  court  was  not  fully  advised,  to  what  measure  of  com- 
pensation the  appellant  was  entitled  for  the  1,400  acres  j  his 
honour  directed,  that  it  be  referred  to  a  master,  to  ascertain 
when  and  in  what  manner  the  100/.  was  paid  to  the  com- 
plainant; what  was,  on  the  1st  of  December,  1792,  the  va- 
lue of  the  said  1,400  acres,  and  what  their  value  on  the 
same  day,  in  the  year  1796,  and  that  a  master  examine 
Effener,  whether,  at  the  time  he  delivered  the  written  re- 
quest mentioned  in  his  deposition,  to  the  complainant,  or 
at  any  time  afterwards,  the  complainant  showed  to  him  the 
mortgaged  premises,  or  any,  and  what  part  thereof ;  and 
that  the  said  master  report  the  proofs  taken  in  the  pre- 
mises, and  his  opinion  thereon,  and  that  all  further  direc- 
tions be  reserved,  until  such  report  shall  be  made."  From 
this  decree,  the  case  now  came  up,  on  appeal,  and  the 
Chancellor  thus  assigned  his  reasons : 


*  129 


Mr.  President — On  this  case,  three  questions  arise. 
1st.  Whether  the  respondent  is  entitled  to  an  account? 
2d.  Whether,  to  the  surplus  of  the  production  of  the  sale 
by  the  appellant,  after  satisfying  *debt  and  costs  ?  3dly. 
Whether  to  a  conveyance  for  the  1,400  acres  located,  and 
granted  to  the  appellant,  or  a  compensation  for  them  ? 

As  to  the  first  question,  the  parties  have  not  made  out 
what  was  the  consideration  money  agreed  to  be  paid  on 
the  purchase  of  the  farm  in  question.  The  respondent  al- 
leges it  was  450/.  The  appellant,  in  his  answer,  declares 
he  does  not  recollect  it,  and  the  deed  imports  it  to  be  410/. 
The  respondent  alleges,  that  100/.  some  wheat  and  flour, 
were  paid  on  account,  and  the  mortgage  taken  for  the  resi* 
due. 


STATE  OF  NEW-YORK.  129 

The  mortgage  is  also  for  410/.     It  is,  therefore,  evident,      ALBANY, 

r  .  .  _      ,  ,       ■  Feb.   1805. 

from  the  written  transactions  or    the  parties,  that  the  sum     ■  _,-  y  -^_' 
due  on  the  24th  day  of  February,  1784,  the   date   of  the       Bioodgood 
mortgage,  was  410/. ;  and  though  the  respondent's  allega-         Zell>- 
tions  are  not  otherwise   to  be  regarded,  if  not  admitted  or 
verified,  than  as  limiting  his  claim,  if  they  are  admitted  to 
that  intent,  it  appears  from  his  own  showing,  that  the  mo- 
ney, wheat  and  flour,  alleged  in  his  bill  to  be  paid  in  satis- 
faction of  the  consideration  money,  were  paid  prior  to  the 
execution   of  the  mortgage,  and,  therefore,  cannot  be  re- 
ceived as  a  credit  on  the  debt  secured  by  it. 

There  is  no  other  allegation  in  the  bill,  of  a  payment 
made  on  the  part  of  the  respondent,  though  one  of  the  wit- 
nesses swears,  that  at  the  time  of  the  sale,  the  respondent 
alleged,  and  the  appellant  admitted,  that  a  credit  had  been 
omitted  of  100/. ;  and  the  subsequent  declaration  of  the  ap- 
ptllant,  that  he  was  satisfied  with  the  product  of  the  sale  of 
the  farm,  and  his  direction  to  stay  the  sale  of  the  personal 
property  of  the  respondent,  appear  to  have  been  prompted 
by  the  admission  of  such  payment. 

*  I  his  is  strongly  corroborated,  by  the  result  of  the  cal-  13° 

culation  of  the  amount  of  the  principal  and  interest,  payable 
on  the  mortgage,  and  the  amount  of  the  moneys  admitted 
to  have  been  paid  in  satisfaction,  from  which  it  appears, 
that  at  the  time  of  the  sale,  a  sum,  somewhat  exceeding 
100/.  beyond  the  production  of  the  sale,  was  necessary  to 
satisfy  the  appellant. 

Both  parties  seem  to  have  conceded,  that  the  debt  was 
satisfied,  and  the  respondent  has  not  pretended  that  it  was 
overpaid ;  though,  from  the  irregular  mode  in  which  the 
business  was  conducted,  the  precise  manner  in  which  it 
was  effected,  cannot  be  satisfactorily  developed,  nor  does 
it  appear  to  me  necessary  to  attempt  it ;  for  there  is  ground, 
in  my  opinion,  to  consider  the  account  respecting  the  mort- 
gage as  closed,  excepting  only  as  to  one  item,  which  re- 
quires some  further  examination. 

pp 


130  CASES  IN  ERROR  IN  THE 

ALBANY,  The  100/.  which  the  respondent  alleged  he  had  paid,  and 
v^i^^/    the  appellant  admitted  to  have  been  paid,  rests  merely  on 
Bioodgood      those  declarations,  made  at  the  time  of  the  sale   of  the 
Zdiy.          farm.     No  receipt  has  been  produced;  no  circumstance 
disclosed,  from  which  the  time   and  manner  of  the  pay- 
ment can  be   collected.     Connecting  these  considerations 
with  the  manner  of  adjusting  the  class-rights,  some  doubts 
are  excited  in  my  mind,  whether  the  100/.  so  paid,  is  not 
the  sum  described  as  the  consideration  money  in  the  as- 
signment of  the  class-rights. 

To  elucidate  this  point  only,  and  not  to  open  the  account 
on  the  mortgage,  I  think  it  a  proper  object  of  reference  to 
a  master. 

As  to  the  second  point.     Whether  the  respondent  is  en 
titled  to  the  difference  between  the  purchase  and  sale  price 
of  the  farm  ? 
*  13f  *Here  the  respondent  has  limited  his  demand,  by  his 

bill,  to  one  half;  the  evidence  would  entitle  him  to  the 
whole,  if  to  any  thing. 

That  the  appellant  promised  that  he  would  divide  such 
difference  with  the  respondent,  is  not  positively  denied  by 
the  appellant  in  his  answer ;  and  it  has  been  proved  by 
two  witnesses  who  werd  present,  and  swear  to  the  con- 
versation. But  they  declare  that  the  promises  were  made 
on  the  condition  that  the  respondent  should  show  "  the  best 
of  the  land?  to  persons  disposed  to  become  purchasers,  so 
as  to  enable  him  to  sell  it  at  500/.  It  is  proved  that  the 
appellant  sold  the  land  for  500/.  But  though  there  is 
proof  that  the  appellant  required  the  respondent  to  show 
the  farm,  by  a  letter  delivered  to  him,  by  Henry  Efener, 
the  person  who  afterwards  purchased  it,  there  is  no  evi- 
dence of  a  compliance  with  that  request. 

The  result  expected  to  be  produced  by  the  respondent's 
showing  the  farm,  was  actually  produced  by  the  selling-  it 
for  500/. ;  but  it  is  not  ascertained  whether  he  did,  or  did 
not,   perform  the   act,  which  entitled    him   to  the  bene- 
fit of  the  appellant's  promise.     If  he  did  not,  I  can  djs- 


STATE  OF  NEW-YORK.  131 

cover  no  ground,  on  which  I  can  decree  its  performance,     ALBANY, 
for  the   showing  the  land,  was  in  the  nature  of  a  condition    v    _.  *^L *  » 
precedent.     The  delivery  of  the  letter  containing  this  re-      Bioo<igood 
quest,  and  the  subsequent  purchase    of  the  farm,  by  the  Zeiiy. 

bearer  of  it,  for  the  sum  fixed  by  the  agreement,  I  think, 
however,  raises  that  kind  of  presumption  that  the  service 
was  actually  performed,  which  will  warrant  a  further  in- 
quiry out  of  the  ordinary  course ;  I  therefore,  also,  refer- 
red *it  to  the  master,  to  inquire  whether  the  respondent  *  *>~ 
showed  the  farm  to  Henry  Effener,  in  consequence  of  the 
letter,  or  at  any  other  time  before,  or  after  it  was 
written. 

I  further  stated,  Mr.  President,  that  I  should  have  no 
objection,  on  the  coming  in  of  the  report  on  this  subject,  to 
hear  the  parties,  on  the  regularity  of  this  last  point  of  re- 
ference, if  either  of  them,  from  its  nature  or  object,  sup- 
posed it  not  in  strict  unison  with  the  course  of  proceeding 
in  the  court  l>elow. 

As  to  the  third  point.  I  have  little  doubt  that  the  assignment 
of  the  class-rights  was  made  under  the  pressure  of  an  exe- 
cution, without  an  advance  of  money  on  account  of  the  pur- 
chase ;  for  the  appellant  does  not  pretend  it  in  his  answer, 
and  the  nature  of  the  transaction  forcibly  repels  any  pre- 
sumption arising  from  its  acknowledgment  in  the  assign- 
ment. But  whatever  the  intent,  all  the  circumstances  at- 
tending it  indicate,  that,  equitably  construed,  it  can  only 
be  considered  as  an  additional  security.  The  bond  speaks 
a  plain  language.  It  contains  a  clause  in  the  condition,  that 
if  250/.  were  paid  in  one  year,  that  then,  not  only  that 
bond,  but  the  assignment  should  be  void.  It  was  coupled 
with  a  forbearance  for  one  year,  and  for  this  forbearance 
150/.  was  exacted,  beyond  the  legal  interest,  if  the  respond- 
ent should  have  it  in  his  power  to  redeem,  at  the  expira- 
tion of  that  period.  I  am,  therefore,  very  clear,  that  the 
doctrine  of  conditional  purchase-right  is  wholly  inapplicable, 
and  that  the  appellant  ought  to  respond  for  the  1,400  acres 
of  land  located. 


132  CASES  IN  ERROR  IN  THE 

ALBANY,  If  this  land  had  not  been  alienated,  the  appellant  having 

become  a  trustee  for  the  respondent,  so  soon  *as  the 
grant  to  him  was  perfected,  a  conveyance  of  it  to  the  re- 
spondent would,  I   think,  under  the  circumstances  of  this 

case,  be  a  thing  of  course.     But  the  appellant  alleges  that 

he  has  sold  it;  and,  as  it  is  not  pretended  that  Mr.  De 
Witt,  the  grantee,  had  notice  of  the  trust,  the  conveyance 
to  him  must  be  considered  as  valid,  and  hence  it  may  be- 
come a  question  of  some  difficulty,  what  ought  to  be  the 
measure  of  compensation. 

As  then  advised,  I  incline  to  think,  that  the  period  at 
which  the  land  ought  to  be  valued,  was  the  time  of  the  de- 
mand, which  is  stated  to  have  been  in  1796,  though  the  sale 
was  made  in  1792. 

Without,  however,  giving  an  opinion  on  this  subject,  I 
ordered  it  to  be  referred  to  a  master,  to  ascertain  what  was 
the  value  of  the  1,400  acres  of  land,  at  both  those  periods, 
but  if  any  improvements  had  been  made  thereon,  exclusive 
of  such  improvements  and  the  sum  expended  by  the  appel- 
lant, in  obtaining  the  letters  patent  therefor. 

The  question  respecting  the  validity  of  a  sale  of  an  equity 
of  redemption,  which  was  urged  in  the  course  of  the  ar- 
gument, is  settled,  I  conceive,  by  the  respondent's  own 
showing,  that  he  confirmed  the  sale  by  a  subsequent  con- 
veyance. 

Lush,  for  the  appellant.  This  case  presents  two  ques- 
tions. 1st.  Was  the  respondent  entitled  to  one  half  of  the 
surplus,  if  any,  on  the  sale  to  Effener,  of  the  Clabergh 
farm?  2d.  Was  the  conveyance  of  the  class-rights,  a  de- 
feasible purchase,  or  a  mortgage  ?  On  the  first  point,  it  is 
evident,  there  was  no  surplus  in  fact.  A  short  statement 
will  show  this. 


STATE  OF  NEW-YORK. 


*134 


'"February  24th,  1784,  there  was  due 
Interest  to  the  19th  September,  1789, 


41QJ. 

159/.  18 


Deduct  then  paid 


Due  the  appellant  on  that  day    569/.  18 
100/. 


Balance  remaining 
Add  interest  from  thence  to  the  day  of  sale 
Poundage  and  costs 


409/.  18 
31/. 
17/. 


Due  on  the  Clabergh  farm  when  Sold       517/.  18 


ALBANY, 

Feb.  1805. 


Blood  good 

v. 

Zeily. 


It  is,  therefore,  clear,  then,  that  the  above  sum,  and 
not  374/.  only,  was  justly  owing  to  the  appellant  when 
the  property  was  brought  to  sale.  The  price,  therefore, 
paid  by  Effener,  could  not  yield  a  surplus.  But  allowing 
that  there  was  one,  still  the  appellant  would  not  be  bound  to 
pay  it  over.  His  declarations,  that  are  now  relied  on,  and 
endeavoured  to  be  turned  against  him,  were  made  in  the 
unsuspecting  goodness  of  his  heart,  and  without  any  con- 
sideration. They  amounted  to  nothing,  and  can  be  con- 
sidered but  as  a  nude  pact.  It  may  be  said,  that  a  very  tri- 
fling thing  will  be  sufficient  to  raise  a  consideration,  and 
for  this  the  authority  of  1  Poxu.  on  Cont*  342,  343.  may  be 
cited.  But  he  does  not  seem  to  have  apprehended  the 
cases  to  which  he  refers. '  They  merely  establish,  that 
where  a  consideration  has  passed,  a  very  little  will  amount 
to  an  acknowledgment.  Thus,  in  the  decision  from  Crokerf  ,  sirJlntkonu 
A.  demised  to  B.  and  B.  assigned  to  C.  who  promised  A.  *"rfe*  A^. 
to  pay  the  rent  due,  if  he  would  produce  to  him  the  deed  97. 
by  which  it  was  reserved.  A.  showed  him  the  deed,  and 
held  that  he  was  bound.  So  in  that  from  Dyer$.  the  de-  $  272.  b.  n.  (32). 
fendant  had  received  50/.  from  the  debtor  of  the  plaintiff,  deard. 


and  when  called  on  for  it,  *said  he  was  not  at  leisure,  but 
would  pay  it  at  another  day.  To  make  a  contract  valid,  both 
parties  must  be  bound.  Here  the  respondent  was  not,  for 
he  never  assented.  Upon  this  principle,  therefore,  the 
contract  was  null,  and  though  a  surplus  had  arisen,  it  could 
not  have  been  recovered. 

The  mere  inspection  of  the  assignment  is  sufficient  to 


*  135 


135 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


Bfoodgood 
y. 

Zeily. 


*  136 


determine  the  second  question,  and  evince  it  not  to  be  a 
mortgage.  It  has  not  one  single  feature  belonging  to  such 
instruments.  There  is  no  loan  of  money  in  it;  no  stipula- 
tion for  repayment;  no  covenant;  no  remedy  upon  it. 
These  are  necessary  ingredients  to  Jcreate  a  mortgage. 
The  first  is  peculiarly  essential.  A  defeasance  cannot  be 
presumed ;  for  the  English  practice  on  this  point  is  un- 
known to  us*.  Nothing  can  be  argued  from  its  not  appear- 
ing that  the  assignment  was  ever  recorded ;  for,  when  it 
was  executed,  class-rights  were  choses  in  action*  There  is 
one  circumstance,  which  seems  conclusive  in  ascertaining 
the  nature  of  the  deed.  The  appellant  was  empowered  to 
take  out  the  letters  patent  in  his  own  name,  and  thus  en- 
ter on  the  land.  Had  the  instrument  been  intended  to  ope- 
rate as  a  mortgage,  this  would  not  have  been  done;  for, 
under  that  species  of  security,  the  mortgagor  always  re- 
mains in  possession.  This  departure  from  general  usage 
shows  a  mortgage  was  never  intended.  The  determina- 
tions in  Jason  v.  Eyres,  2  Ch.  Cas.  33.  Howard  v.  Harris^ 
1  Fern.  33.  Willett  v.  Winnell,  ibid.  488.  and  Jennings  v. 
Ward,  2  Fern.  520.  which  may  be  adduced,  as  strong  ca- 
ses of  redeemability,  against  the  tenor  of  deeds,  do  not 
apply.  They  only  settle  the  rule  of  once  a  mortgage,  and 
ever  a  mortgage.  But  Cotterell  v.  Purchase,  Cas.  temp. 
Talbot,  61.  goes  the  *whole  length  of  the  case  before  the 
court.  It  was  there  held,  that  an  absolute  conveyance,  ac- 
companied with  possession,  will  not  easily  be  presumed  a 
mortgage,  though  there  be  an  incongruous  covenant  in  it. 
In  Ensworth  v.  Griffith,  1  Bro.  Pari.  Ca.  149.  a  purchase  of 
an  equity  of  redemption  by  a  mortgagee,  though  accompanied 
with  a  written  memorandum  of  an  agreement  to  permit  a 
redemption,  was,  after  a  lapse  of  the  day,  ruled  to  have 
become  absolute,  and  principally  on  account  of  the  ful} 
worth  of  the  estate  having  been  paid.  This  circumstance 
is  exactly  analogous  to  the  ground  of  the  appellant's  claim. 
Barrell  v.  Sabine,  1  Fern.  268.  shows  the  distinction  be- 
tween a  conditional  purchase,  and  a  mortgage.  The  first 
6 


STATE  OF  NEW- YORK.  135 

requires  a  strict  adherence  to  the  clay  limited  for  the  ALBANY, 
repurchase,  because  lending  and  borrowing  is  not  the  basis 
of  the  contract,  and,  therefore,  though  the  value  of  the 
property  was  greatly  enhanced,  and  there  was  a  clause  to 
restore,  on  repayment,  on  the  day  appointed,  the  court 
refused  to  direct  a  reconveyance,  as  the  sale  was  absolute. 
The  same  principle  is  found  in  Floyer  v.  Lavinglon,  l  P. 
Wms.  268.  But  the  case  most  like  the  present,  is  Tasburgh 
v.  Echlin,  4  Bro.  ParL  Ca.  142.  There,  the  sum  of  200/. 
lent  on  a  proviso,  similar  to  that  in  the  assignment  of  the 
class-rights,  was,  merely  because  there  was  no  covenant 
for  repayment,  held  to  be  a  conditional  purchase,  and  a 
redemption  denied,  though  the  value  of  the  estate  was  900/. 
per  annum,  and  the  lender  had  himself  filed  a  bill,  praying 
a  redemption  or  foreclosure.  With  this  train  of  adju- 
dications, therefore,  in  support  of  the  appellant's  title, 
there  can,  it  is  presumed,  be  little  doubt  of  a  reversal. 

*Van  Vechten,  contra.  The  agreement  to  divide  the  stir-  *  137 

plus,  that  might  be  produced  from  the  sale  of  the  Clabergh 
farm,  is  proved  by  the  testimony  of  two  witnesses.  It  re- 
mains, therefore,  only  to  show  that  there  was  a  consider- 
ation for  such  agreement,  and  that  a  surplus  did  arise.  To 
create  a  sufficient  consideration,  the  mere  showing  the 
lands  would  suffice,  and  Effener  himself  proves  that  it  was 
performed.  In  support  of  there  being  an  actual  surplus,  we 
have  only  to  advert  to  the  declarations  of  the  appellant  him- 
self. When  the  land  was  struck  off  to  him  in  October, 
1790,  for  340/.  he  acknowledged  himself  to  be  satisfied, 
and  he  afterwards  sells  for  500/.  This,  then,  must  have 
left  a  surplus,  of  the  half  of  which  he  instantly  became, 
under  the  agreement,  trustee  for  the  respondent,  and  of 
course,  liable  to  account.  As  to  the  assignment  of  the 
class-rights,  the  circumstance  of  its  being  given  under  the 
pressure  of  an  execution,  merely  to  have  a  further  indul- 
gence, shows  it  to  have  been  no  more  than  a  further  secu- 
rity for  the  original  debt ;   and  redeemabilitv,  of  course,  a 


137 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


Bloodgood 

v. 

Zeily. 


necessary  incident.  The  defeasance  with  which  it  was  ac- 
companied, still  further  elucidates  this  idea,  and  corrobo- 
rates our  position.  It  is  a  settled  principle  in  equity,  that 
every  contract  for  the  securing  of  money  is  a  mortgage. 
— — — — —  1  Pow.  on  Mart.  146.  Therefore,  though  the  condition 
of  a  mortgage  be  to  redeem  during  the  life  of  the  mortga- 
gor, the  heir  will  be  entitled  to  redemption.  Kilvington  v. 
Gardner,  1  Fern,  192.  Absolute  conveyances,  accompa- 
nied by  defeasances,  in  separate  deeds,  are,  by  our  sta- 
f  Act  concern-  tute,f  considered  as  mortgages,  and  directed   to   be  regis- 

ing  mortgages.  .  „ 

*  138  '  tered  as  such.  *1  Rev.  Laws,  481.  s.  3.  1  he  case  of 
Manlove  v.  Ball  and  Bruton,  2  Vern.  84.  goes  the  whole 
length  of  the  one  before  the  court.  There,  in  consideration 
of  550/.  an  absolute  conveyance  was  made  of  a  church  lease 
for  three  lives.  The  grantee  executed  a  separate  instru- 
ment, by  which  he  agreed,  on  payment  of  600/.  within  a 
twelve-month,  to  reconvey.  The  600/.  were  not  paid.  Yet 
a  redemption  was  allowed  after  the  expiration  of  near  20 
years,  and  though  the  defendant  had  twice  renewed  the 
lease,  on  the  dropping  of  two  of  the  original  lives.  The 
mere  lapse  of  the  day  of  payment  never  works  an  injury, 
where  there  was  an  original  redeemable  interest.  Exton  v. 
Greaves,  1  Vern.  138.  Croft  v.  Powel,  Com.  603.  Even  a 
fine  and  non-claim  for  five  years,  creates  no  difference. 
♦  Rowellv.  Walley,  1  Ch.  Rep.  218.  Welden  v.  Duke  of  Tori, 
1  Vern.  132.  In  Stanhope  v.  Thatcher,  Prec.  Ch.  435.  an 
estate-tail  created  for  the  security  of  a  sum  of  money,  and 
even  the  fee  subsequently  acquired  by  a  recovery,  were 
held,  in  equity,  to  amount  only  to  a  mortgage,  and  defeasible 
on  payment  of  the  money  due.  In  viewing  this  case,  it  is 
to  be  remembered,  that  redemptions  are  favoured,  and 
defeasible  purchases  discountenanced.  Howard  v.  Har- 
ris, 1  Vern.  191.  The  appellant  might  have  treated  the  as- 
signment as  a  mortgage.  It  must,  then,  be  equally  so 
with  respect  to  the  respondent ;  for  it  cannot  be  a  mort- 
gage on  one  side  only. 


*  139 


STATE  OF  NEW-YORK.  138- 

Henry,  in  reply,  insisted,  that  however  good  such  an  ALBANY, 
Agreement  as  that  to  divide  the  surplus  of  the  Clabergh 
farm  might  have  been,  if  assented  to,  it  could  not  prevail 
between  the  respondent  and  appellant ;  ^because  the  former, 
by  refusing  to  reconvey,  and  driving  the  latter  to  the 
necessity  of  receiving  a  sheriff's  deed,  had  destroved  all 
mutuality.  To  establish  no  surplus,  he  relied  on  the  state- 
ment made  by  his  associate  counsel  in  opening.  He  ad- 
mitted the  general  rule  as  to  the  redeemability  attached  to 
mortgages,  but  contended  ,  that  defeasible  purchases  were 
an  exception  to  it,  as  they  did  not  rest  on  a  borrowing 
and  lending,  and  the  mere  agreement  to  permit  a  repur- 
chase of  such  an  interest  as  a  class-right,  which  was  only 
a  chose  in  action,  could  not,  he  said,  operate  as  a  mort- 
gage. 

Per  Curiam,  delivered  by  Kent,  Ch.  J.  It  will  not  be 
requisite  to  recapitulate  minutely  the  facts  in  the  cause,  but 
I  apprehend  it  will  be  sufficient  to  state  the  points  that  have 
been  raised  for  our  consideration,  and  to  apply  the  mate- 
rial facts  to  those  points,   as  we  proceed  to  discuss  them. 

The  appellant  contends  that  the  decree  is  erroneous  ;  1st. 
In  making  the  proceeds  of  the  sale  of  the  Clabergh  farm 
any  basis  for  an  account;  and,  2d.  In  allowing  the  re- 
spondent a  right  of  redemption  as  to  the  assignment  of  the 
class-rights,  for  l,4CO  acres  of  land. 

1st.  The  accounts  between  the  parties  relative  to  the 
bond  and  mortgage,  do  not  appear  to  have  been  kept  with 
much  regularity  or  precision,  and  it  would  be  difficult  from 
the  facts  before  us,  to  make  an  accurate  liquidation  of  those 
accounts.  Nor  do  I  think  it  necessary  so  to  do,  for  I 
agree  with  the  court  below,  in  the  propriety  of  considering 
the  accounts  relating  to  the  mortgage  as  closed,  and  thac 
the  mortgage  is  to  be  considered  as  satisfied.  It  is  equally 
needless  to  determine,  whether  the  agreement    to    *divide  #  j^0 

the  surplus  moneys  arising  upon  the  sale  of  the  farm    (if 
any  such  agreement  was  made)  be  valid  and    binding  upon 


140 


CASKS  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 

Bloodgood 

v. 

Zeily. 


*  141 


the  parties,  for  I  am  satisfied  there  was  no  surplus  moneys 
to  divide.  The  balance  due  upon  the  bond  at  the  time  of 
the  sale  must  have  amounted  to  500/.  and  upwards,  the  sum 
at  which  the  farm  was  afterwards  sold  to  Effener,  and  that, 
too,  after  allowing  as  a  credit,  the  sum  specified,  as  the 
consideration  of  the  assignment  of  the  class-rights. 
With  respect  to  that  consideration,  I  think  it  is  clear,  that  it 
was  not  created  by  the  advance  of  cash  from  the  appellant 
to  the  respondent.  The  answer  of  the  respondent  does 
not  pretend  it  was,  and  this  must  be  the  sum  which  the  ap- 
pellant, at  the  time  of  sale,  admitted  ought  to  have  been 
credited  on  the  bond.  The  assignment,  therefore,  of  the 
class-rights,  must  have  been  taken  by  the  appellant,  as 
equivalent  to   the  payment  of  100/.  upon  the  bond. 

This  brings  me  to  the  consideration  of  the  second  point. 
Whether  the  respondent  be  entitled  to  redeem  ?   I  consider 
the  assignment  of  the  class-rights  as  being  intended  by  the 
parties  to  operate  as  the  payment  of  100/.  on  the  bond  and 
mortgage.     It  was  not  given,  or  accepted,  absolutely   as 
cash,   but  as  a  security  for  the  payment  of  so  much  of   the 
antecedent  debt,   and,   therefore,   I  entirely  agree  with  the 
Chancellor,   that  it  is  not  to  be  considered  in  the  light  of  a 
defeasible  purchase,   but   as   an  additional  security    for   a 
part  of  the  pre-existent  debt,  and  to  which  the  right  of  re- 
demption   was    necessarily   attached.      I    entertain   a  full 
persuasion  that  this  is  a  just   solution  ;    the  real   truth  of 
the  transaction.     The  internal  evidence  of  the  case  is,  to 
mv  mind,  conclusive  as  to  the  fact.     I  have  no  doubt    that 
this  mode  *of  securing  the  payment  of  100/.  in  part  satis- 
faction of  the  execution,   was   the    cause   why  proceedings 
under  the  execution,   were  stayed  from  September,  1789, 
when  the  assignment    was  made,  until   September,    1790^ 
when  the  respondent  made  default   in    the    redemption   of 
his  class-rights.     I  am  of  opinion,  therefore,   that   a  right 
of  redemption  most  justly  and  equitably  attaches   to  this 
case. 


STATE  OF  NEW- YORK.  M1 

The  few  cases  that  are  to  be  met  with,  of  defeasible  pur-  ALBANY 
chases,  and  in  which  the  equity  of  redemption  is  said  to  be  Feb  ,805' 
destroyed,  after  the  limited  time,  by  agreement  of  the  par-  niowigood 
ties,  are  cases  in  which  there  was  a  great  lapse  of  time  be-  zJilv 

tween  the  forfeiture  and  the  application  to  redeem.     Floyer 

v.  Lavington,  1  P.  Wms.  268.  Ensxvorth  v.  Griffith,  1  Bro. 
Pari.  Ca.  149.  Tasburgh  v.  Echlin,  4  Bro.  Pari  Ca.  142.  1 
Poxv.  on  Mort.  4  ed.  169  to  184.  ;  and  Mr.  Pozvcll  admits, 
in  page  183.  that  the  intention  of  the  parties  must  be  clear- 
ly proved,  or  necessarily  implied,  otherwise  they  will  not 
be  taken  out  of  the  operation  of  the  general  rule.  The  in- 
tention of  the  present  parties  is  so  far  from  appearing  to 
make  this  assignment  a  defeasible  purchase,  as  contradis- 
tinguished from  a  collateral  security  for  a  debt,  that  it  is 
manifest,  from  a  review  of  the  case,  that  the  assignment 
was  made  to  secure  100/.  as  part  of  the  bond,  and  by  that 
means  the  respondent  obtained  the  indulgence  of  another 
year  to  meet  the  execution. 

My  opinion,  therefore,  is,  that  the  decree  is  correct  in 
attaching  the  right  of  redemption  to  the  interest  assigned  ; 
but  as  the  1,400  acres  have  since  been  sold  by  the  appel- 
lant, and,  as  we  must  intend,  to  a  bona  fide  purchaser 
without  notice,  the  only  ^question  is,  as  to  the  measure  of  *  142 

compensation  which  the  respondent  is  entitled  to  receive. 

It  will  be  perceived,  from  the  view  I  have  taken  of  the 
transaction,  that  the  respondent  is  not  entitled  to  redeem, 
without  paying  to  the  appellant  the  100/.  with  interest  from 
the  date  of  the  assignment.  That  sum,  therefore,  must 
be  deducted  from  the  amount  of  his  compensation.  The 
only  point  of  any  difficulty  is  that  of  settling  the  time  at 
which  the  value  of  the  1,400  acres  is  to  be  computed.  If 
the  appellant  had  retained  the  lands  till  1796,  when  the  re- 
spondent demanded  a  release  of  them,  he  would  have  been 
obliged  to  restore  the  lands,  or  their  then  value,  exclusive 
of  improvements ;  but  he  had  previously  sold  them  to  a 
third  person  for  500/.  which  he  states  to  have  been  the 
highest  price  which  could  be  obtained,  and  that  when  ho 


14*  CASES  IN  ERROR  IN  THE 

ALBANY,       sold  them,  he  did  not  suppose  the  respondent  had,  or  pre- 
y   0-     -^J_  >     tended  to  have,  any  claim  to  the  lands.     As  the  respondent 
Bioodgood       assigns  no  reason  why  he  lav  by  till  1796,  I  incline  to  the 
Zeiiy.  opinion,   that,  under  the  circumstances    of  this  case,  the 

price  that  the  appellant  procured  for  the  lands,  would  form 
the  most  equitable  rule  of  computation.  He  appears  to 
have  sold  the  lands,  under  a  belief  that  they  were  absolute- 
ly his. 

My  opinion  accordingly  is,  that  the  appellant  be  decreed 
to  account  to  the  respondent  for  500/.  being  the  sum  for 
which  he  scld  the  1,400  acres,  together  with  interest  from 
the  time  of  the  sale,  which  was  on  the  1st  December,  1792, 
and  costs  both  in  this  court  and  the  court  below,  and  that 
the  appellant  be  allowed  against  that  sum  100/.  with  in- 
terest from  the  19th  of  September,  1789,  and  that  the  court 
*  143  below  be   directed  *to  execute  this   decree,  and  that  the 

decree  below,  be,  in  all  other  respects,  reversed. 

Judgment  accordingly. 


William  and  George  Taylor,  Appellants,  against 
Ann  Delancy,  Respondent. 

The  RtirroRate       ON  appeal  from  a  decree  of  the  judge  of  probates,  on 

lias  a  discretion-      .       r  ..        .         _ 

ary     power     to    the  following  tacts. 

ofeCtlieUtnext°of       John  Taylor  died  intestate,  leaving  a  widow,  three  sons, 
km  to  an  mtes-  Wiu\am    George,  and  Charles,  and  three  daughters,  Ann, 

tate,  anv  one  m  '  <->    '  '  °  ' 

an  eoual  degree,  the  respondent,  Phoebe  and  Maru.     The  widow  having  re- 

and      grant     to    '  l  ... 

sue!,  person,  sole  nounced  the  administration,  the  two  daughters,  Phoebe  and 

administration.  '  ,       .  ,      ,     .  '  ,         .     .  ...  , 

Mary,  united  with  their  busbands  in  petitioning  the  surro- 
gate to  appoint  Ann  sole  administratrix,  she  being  the  eldest 
child.  Against  this,  William  entered  a  caveat,  claiming  a 
right  to  be  joined  with  her,  which  she  denied.  Whilst  the 
caveat  was  pending,  the  four  other  children  presented  to 
the  surrogate  an  ex  parte  paper,  stating  as  objections   to. 


STATE  OF  NEW-YORK.  14£ 

William,  1st.  That  he  was  so  much  engaged  in  commerce,  ALBANY, 
as  not  to  have  time  to  attend  to  the  estate  ;  2d.  That  the 
family  could  not,  at  all  times,  have  access  to  him,  which, 
if  he  was  an  administrator,  would  be  inconvenient;  3d. 
That  he  was  at  variance  with  the  other  branches  of  the  "~"~~" — ~~— 
family,  and  his  temper  such  as  to  promote  discord  rather 
than  harmony ;  4th.  That  they  were  persuaded,  it  would 
be  his  object  and  interest,  to  delay  a  settlement  of  the 
estate ;  5th.  Because  the  law  does  not  favour  joint  ad- 
ministrations. 

The  surrogate,  under  these  circumstances,  decreed  ad- 
ministration to  be  granted,  exclusively,  to  *Ann»  From  *  144 
this,  William  appealed  to  the  judge  of  probates,  and  on  the 
proceedings  being  transmitted,  George  petitioned  to  be  uni- 
ted with  any  person  to  whom  the  administration  might  be 
granted.  His  honour,  having  affirmed  the  decree  of  the 
surrogate,  directed  sole  administration  to  Ann,  on  which 
the  case  was  now  brought  before  this  court. 

Henry,  for  the  appellants.  This  case  brings  up  two 
question :  1st.  Whether  a  surrogate  has  a  discretionary 
right  to  elect,  among  persons  in  equal  degree,  to  whom  he 
will  commit  administration  ?  2d.  Whether,  admitting  this 
discretion,  it  has,  on  the  present  occasion,  been  duly  exer- 
cised ?  To  determine  the  first  point,  it  will  be  necessary 
to  investigate  the  origin  of  the  power,  now  conferred  on 
the  surrogate,  in  granting  administration ;  to  trace  from  it 
its  common  law  source,  to  the  statute  provisions  in  England, 
and  mark  the  diversity  in  them,  from  the  act  of  our  legisla- 
ture on  the  subject. 

Antecedent  to  parliamentary  provisions,  the  king,  in 
cases  of  intestacy,  as  parens  patria,  was  entitled  to  the 
goods  of  the  deceased,  in  order  to  defray  the  expenses  oi 
his  funeral,  discharge  his  debts,  and  apply  them  to  the 
benefit  of  his  wife  and  children.  If  there  were  none,  those  . 
goods,  as  a  branch  of  the  royal  prerogative,  constituted  a 
part  of  his  revenue,  which  he  obtained  possession  of  by  his 


*44 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


*   145 


ministers,  and,  most  probably,  through  the  medium  of  tho 
county  courts.     At  length,  through  the  influence  of  eccle- 
siastical persons,  the  administration  of  intestates'    effects 
was  granted  to  the  ordinary,  who,  after  giving  one  third  to 
the  widow  and  children,  was  imagined  to  dispose   of  the 
residue,  or  dead  man's  part,  in  pios  usus,  for  the  ^benefit 
of  his  soul.     The  abuses,  however,  of  the  clergv,  called 
for  legislative  interposition,  and  it  was  by  the  31  Edzv.  III. 
c.  11.  enacted,  that  the  ordinary  should  grant  administration 
to  the   "  next   and   most  lawful  friends"  of  the   deceased. 
This  was  construed  to  mean  such  of  the  next  in  blood,  as 
did  not  labour  under  legal  disabilities.     What  those  were, 
are  specified  in  Hensloe's  case,  9  Rep.  39.  and  Toller's  Law 
of  Exec.  66.     But  the  ingenuity  of  the  churchmen  attempt- 
ed to  narrow  this  right,  by  choosing  from  among  those  of 
the  next  of  kin,  him  who  would  purchase  the  favour,  or  be 
most  obsequious  to  them  in  the  distribution.     This  power 
of  election  being  a  doubtful  right,  the  21  Hen.  VIII.  c.  5» 
was  passed  to  confer  it.     By  the  words  of  the  statute,  the 
ordinary  is  empowered  to  grant  administration  to  the  wi- 
dow or  next  of  kin,  or  both  "  as  by  the  discretion  of  the 
same  ordinary  shall  be  thought  good.    And  in  case,  where 
divers  claim  the  administration,  which  be  in  equal  degree 
of  kindred  to  the  person  deceased,  and  where  any  person 
only  desireth   the  administration,  as  next  of  kin,    where, 
indeed,  divers  persons  be  in  equality  of  kindred,    as  is 
aforesaid ;  that  in  every  such  case,  the  ordinary  to  be  at  his 
election  and  liberty  to  accept  any  one  or  more  making  re- 
quest, where  divers  do  require  the  administration."     This 
statute  is,  by  Blackstone^i  termed  an  enlarging  act.     It  was 
passed  to  give  privileges  to  the  church,  and  confirm  that 
power   of  election,  which  they   before  used,  though   with 
some  degree  of  distrust,  of  nominating  the  most  pliable  of 
the  kindred,  to  the  administration.     It  was  a  boon  to  the 

#  146  ecclesiastical  *order.     It  was  the  abuse  of  it  which  induced 

*  22  &  23  Car.  the  statute  of  distributions^  to  put  an  end  to  those  frauds 
ii.cio.  which  had  been  practised  under  the  former  laws.     After 


f  2  Cormn.  496. 


STATE  OF  NEW-YORK.  146 

this  plain  history  of  the  right  of  election  in  the  ordinary  to      ALBANY 
exclude  some  and  prefer  others  to  the  office  of  administra-      *^b-  i&^5-  / 
tion,  can  it  be  argued  that  it  was  bestowed  to  avoid  the         Taylor 
Inconvenience  of  joint  administrations  ?     It  is  not  the  re-       Dek.uey. 
suit  of  common  law  principles,  but  the  effect  of  positive  —————— 

institution ;  and  if  our  act  does  not  bestow  the  same  dis- 
cretion, it  cannot  exist.  The  words  made  use  of  by  our 
legislature  are,  that  administration  of  the  estate  of  any  per- 
son dying  intestate,  shall  be  granted  "to  the  widow,  or 
next  of  kin  of  the  intestate,  or  some  of  them,  if  they,  or 
any  of  them,  will  accept  the  same."f     These  expressions  t l  ^ev-  -£«w* 

i  ,  .....  318.  s.  5. 

do  not  vest  the  surrogate  with  a  discretionary  power  to 
elect  one  of  the  next  of  kin  solely,  and  in  exclusion  of 
those  who  "  will  accept  the  same."  The  sentence,  if  at 
full  length,  would  read  thus,  u  to  the  next  of  kin  if  they 
will  accept  the  same,  to  some  of  them,  if  any  of  them  will 
accept  the  same."  Therefore,  if  all  in  the  same  degree 
accept  the  administration,  the  surrogate  must  grant  it ;  if, 
indeed,  all  do  not  choose  to  accept,  then  he  may  grant  to 
some.  The  law  is  mandatory,  and  does  not  allow  of  any 
discretion.  That  this  was  the  intention  of  those  who  fra- 
med and  revised  it,  is  evident,  from  comparing  the  phraseo- 
logy of  the  old  act,  with  that  of  the  present  day.  By  the 
former,  the  ordinary  was  empowered  to  grant  administra- 
tion "  to  the  widow  or  next  of  kin  of  the  intestate,  or  to 
some,  or  one  of  them,  if  they  or  any,  or  either  of  them  will 
accept  the  same."|  *No  such  words  are  to  be  found  in  $  Game's  fol.  ed. 
our  amended  code,  and  it  is  not  to  be  presumed  they  were  *  147 

rejected  without  reason.  The  sixth  section  of  the  act  now 
in  force,  corroborates  our  positions.  For  it  requires  all 
the  next  of  kin  to  be  cited,  in  case  any  other  person  should 
apply  for  administration.  Why  cite  them  if  all  were  not 
entitled  ?  No  inconvenience  can  arise  from  the  bonds  re- 
quired, because  each  administrator  is  allowed  to  find  his 
own  separate  surety.  As  to  the  second  point,  we  surely 
are  justified  in  saying,  though  the  surrogate  may  be  entided 
to  the  discretion  he  claims,  he  has,  in  the  instance  now  be- 


UT  CASES  IN  ERROR  IN  THE 

ALBANY,      fore  the  court,  abused  it.     Our  system  allows,  it  is  true^ 

Feb.  1805.  .       .      .  ,  .  .  „    ,     .       ,. 

to  its  judges,  the  exercise,  m  some  instances,  or  their  dis- 
cretion ;  but  then  it  must  be  such  a  one  as  is  sound  and 
lawful,  not  arbitrary  and  capricious.     Therefore,  if  once 

duly  made  use  of,  it  can  never  be  revoked,  and  adminis- 
tration granted  to  another ;  for  that  would  be  arbitrary. 
11  Vin.  Abr.  114.  pi.  10.  (n).  Men,  and  even  a  mercan- 
tile character,  have  been  passed  by,  to  grant  administration 
to  a  woman,  whose  education  and  very  sex  must  be  against 
the  appointment.  This  last  circumstance  has  been  said,  of 
itself,  to  be  an  objection,  because,  "  she  may  marry,  and 
so  put  herself  and  her  goods  under  the  power  of  another." 

f  Blackbovough  12  Mod.  619.f  Should  the  court  be  of  opinion  with  us, 
they  will,  therefore,  grant  the  administration,  as  we  sug- 
gest, to  all  who  will  accept ;  for,  in  cases  of  this  sort, 
when  the  decision  appealed  from  is  set  aside,  the  inferior 
tribunal  is  ousted  of  its  jurisdiction,  and  the  court  which 
reverses,  shall  grant  administration  de  novo.  Reeve  v. 
Denny,  11  Vin.  Abr.  76.pl.  12. 

*  148  ^Harison  and  Van  Vechten,  contra.     The  rights  of  the 

appellants  rest  entirely  on  our  statute  provisions,  and  it  is, 
therefore,  unnecessary  to  travel  back  into  the  remote  periods 

*  i  Rev.  Latvs,  of  ecclesiastical  abuse.     Antecedent  to  the  general  repealj 

of  the  English  acts  of  parliament,  those  of  Edxv.  III.  and 
Hen.  VIII.  were  in  use  here.  When  they  were  abrogated, 
it  was  not  from  any  view  inimical  to  their  spirit,  but  to 
adopt  the  same  principles  under  an  act  of  our  own.  The 
existing  act  of  the  legislature  is  to  be  expounded  accord- 
ing to  the  reason  of  the  antecedent  law,  and  never  to  be 
construed  to  repeal,  further  than  that  reason  will  justify. 
The  discretion  now  practised  by  the  surrogate  has  been 
sanctioned  by  a  usage  of  years.  Nothing  but  a  clear  in- 
tent ought,  therefore,  to  abolish  it,  instead  of  the  construc- 
tive alteration  which  the  counsel  for  the  appellant  has  la- 
boured. By  being  authorized  to  grant  to  some,  the  surro*- 
gate  is  necessarily  empowered  to  reluse  to  bestow  on  al!> 


STATE  OF  NEW-YORK.  148 

The  words  of  the   law  clearly  mean,  that  he  may  grant      ALBA.XY, 
administration  to  any,  or  any  one  of  those  who  are  next  of     ^^  l^J 
kin,  or  to  any  one  of  them  who  will  accept  the  same.  When        Taylor 
we  look  at  the  former  law,  which  it  was  not  intended  to        Deia'ncy. 
depart  from,  we  can  easily  perceive   that  the  u  any"  must 
signify  any  one,  at  his  election.     This  power  of  election  is 
indispensably  necessary.     Persons  next  of  kin  may  be  un- 
der disabilities,  which  would  render  it  almost  criminal  in 
the  surrogate   not   to  reject.     They  may  be  bankrupts,  or 
largely  indebted  to  the  intestate.  Without  a  discretion,  there- 
fore, he  could  not  do  justice  to  the  estate.     But   that  ap- 
pointing a  woman   should  be  an  abuse  of  it  is  rather  sin- 
gular, when  the  legislature,  in  the  case  of  a  widow,  direct 
it  to  be  given  to  htr.     If  we  are  correct  in   our  idea  of  a 
discretion  *in  the  surrogate,  the  appeal  cannot  be  maintain-  #  140 

ed.  From  the  use  of  discretionary  powers  there  is  none. 
It  is  contrary  to  their  nature.  On  applications  for  new 
trials,  setting  aside  defaults,  rehearings  in  chancery,  allow- 
ing  or  directing  informations  in  the  nature  of  a  quo  -war- 
ranto, no  exception  can  be  taken,  or  writ  of  error  brought. 
They  may,  indeed,  be  subjects  of  criminal  proceeding,  by 
iniictment  or  impeachment,  but  never  can  be  the  ground- 
work of  appeal  or  error.  The  argumentum  ah  inconvenienti 
is  conclusive  against  the  right.  An  instance  has  very  late- 
ly occurred  in  the  city  of  New-Tork  of  a  death,  where  the 
next  of  kin  consisted  of  150  persons,  all  in  the  same  de- 
gree.    This  alone  is  sufficient  to  affirm  the  decree  below. 

Pendleton,  in  reply.  We  must  construe  the  clause  in  our 
statute  distributively.  To  the  next  of  kin,  if  they  will 
accept,  or  some  of  them  if  they  will,  or  any  of  them  if 
they  will  accept  the  same.  It  is  a  positive  law,  and  how- 
ever inconvenient,  it  is  not  with  this,  or  any  other  court  to 
repeal  it. 

Per  Curiam,  delivered  by  Spencer,  J.  The  appellants' 
counsel  have  insisted,  1st.  That  under  the  5th  section  of 

r  r 


148 


CASES  IN  ERROR  IN  THE 


ALBANY, 

J'"eb.  1805. 

V«^  -^ 

Taylor 

v. 

Delancy. 


*  150 


the  act,  li  relative  to  the  court  of  probates,  the  office  of  sur- 
rogate, and  the  granting  of  administrations,"  there  is  no 
discretion  vested  in  the  surrogate,  to  select  one  of  the 
next  of  kin  in  equal  degree,  where  they  ail  request  ad- 
ministration, and  are  under  no  legal  disability  ;  2d.  That 
in  this  case,  if  such  discretionary  power  is  given  by  the 
act,  it  has  been  so  exercised  as  to  require  correction  by  this 
court. 

The  only  legislative  provisions  on  this  subject,  are  to  be 
found  in  the  acts  of  the  14th  of  February,  1787,  *and  the 
27th  of  March,  18C1.  Ihe  former  of  these  statutes  directs, 
"that  where  any  person  dieth  intestate,  the  widow,  or  next 
of  kin,  or  any  of  them,  of  the  deceased  person,  if  they, 
or  either  of  them  will  accept  the  same,  &c.  shall  be  depu- 
ted." The  latter  statute  ordains,  "  that  administration  of 
the  goods,  and  chattels,  and  credits  of  any  person  dying 
intestate,  shall  be  granted  to  the  widow,  or  next  of  kin  of 
the  intestate,  or  some  of  them,  if  they,  or  any  of  them, 
will  accept  the  same."  These  acts  are  of  the  description 
of  revised  laws,  and  if  susceptible  of  doubt  in  their  inter- 
pretation, resort  must  be  hid  to  the  law  existing  antece- 
dently. By  the  constitution,  the  British  statute  of  the 
21st  Hen.  VIII.  regulating  the  granting  of  administrations 
was  adopted  and  recognised  as  the  law  of  the  state.  The 
35th  article  of  the  constitution  ordains,  that  such  parts  of 
the  common  law  of  England,  and  of  the  statute  law  of 
England  and  Great  Britain,  and  of  the  acts  of  the  legis- 
lature of  the  colony,  as  together  did  form  the  law  of  the 
said  colony,  on  the  19th  of  April,  1775,  should  be  and  con- 
tinue the  law  of  this  state,  subject  to  such  alterations  and 
provisions  as  the  legislature  should  from  time  to  time  make 
concerning  the  same.  The  statute  of  the  21st  Hen.  VIII. 
became  thereby  the  law  of  the  state,  and  the  5th  chap.  3d 
and  4th  sections  of  that  statute,  in  express  terms,  gave  to 
the  ordinary  a  right  to  accept  one  or  more  administrators 
when  there  was  an  equality  of  kindred,  according  to  his 
discretion.     The  revisers  of  the  laws  in   1 787,  well  knew 


*  151 


STATE  OF  NEW-YORK.  150 

that  this  statute  vested  a  discretion,  and  still  we  find  no  ALBAXY, 
terms  made  use  of  negativing  that  discretion,  or  purport- 
ing to  change  the  law.  So  far  from  this,  it  appears  to  me 
*that  the  words  "  or  any  of  them,"  in  the  act  of  1787,  if 
they  were  now  to  receive  a  construction  for  the  first  time, 
confer  a  discretion  on  the  surrogate.  My  opinion  is  found- 
ed on  this  proposition,  that  where  the  law,  antecedently 
to  the  revision  was  settled,  either  by  clear  expressions  in 
the  statutes,  or  adjudications  on  them,  the  mere  change  of 
phraseology  shall  not  be  deemed  or  construed  a  change  of 
the  law,  unless  such  phraseology  evidently  purports  an  inten- 
tion in  the  legislature  to  work  a  change.  A  contrary  con- 
struction might  be  productive  of  the  most  dangerous  conse- 
quences. The  quaintness  of  expression  in  some  of  the  an- 
cient British  statutes,  the  circumstance  of  there  being  several 
statutes  on  the  same  subject,  required,  in  many  cases,  an  en- 
tire change  of  language,  but  it  has  ni;ver,  until  now,  been 
contended,  that  thereby  an  alteration  of  tne  law  was  to  be 
inferred. 

If  this  was  a  case  wholly  df-pending  on  the  statutory 
provision,  of  the  act  of  the  27th  of  March  y  1801,  (and  to 
this  as  a  revised  law,  the  same  observations  are  applicable, 
as  have  been  made  in  relation  to  the  statute  of  the  14th  of 
February,  1787,)  I  should  incline  to  the  opinion,  that  the 
words,  "or  any  of  them,"  would  vest  a  discretionary 
power  in  the  surrogate,  of  making  an  election  between 
those  in  equal  degree.  If,  however,  the  words  are 
doubtful,  arguments  from  inconvenience  would  have  a  de- 
cisive and  conclusive  influence.  Nothing  could  be  more 
absurd  than  to  require  the  surrogates  to  confer  the  right  of 
administering  on  all  who  are  next  of  kin,  and  who  may 
desire  it,  when  their  numbers,  their  residence,  their  per- 
sonal qualifications  would,  in  prudence,  require  their  ex- 
clusion. I  am,  therefore,  clearly  of  opinion,  *that  the  •  *  152 
surrogate  had  a  discretionary  power  of  selecting  one  to  the 
exclusion  of  others,  by  which  I  mean  a  sound  legal  dis- 
cretion not  founded  in  whim  or  caprice. 


152 


CASES  IN  ERROR  IN  TKE 


ALBANY, 

i\  b.  1805. 


rJ  ay  lor 

v. 
Delaney. 


As  to  the  second  point,  whether  the  abuse  of  discretion 
is  a  ground  of  relief  here.  I  am  not  disposed  to  say,  that 
t  here  may  not  be  cases,  where  the  exercise  of  a  discretion 
in  a:i  unjust  and  illegal  manner,  would  not  be  re-examina- 
ble  and  relievable.  Of  this  there  may  be  a  doubt,  and  in 
the  case  of  Preston  and  others  v.  Ferrard,  2  Bro.  Pari.  Ca. 
179.  the  house  of  lords  affirmed  the  Chancellor's  order,  on 
the  ground  that  the  act  of  2d  of  Anne,  had  conferred  on 
him  a  discretionary  power  to  appoint  guardians  to  the  chil- 
dren of  Roman  Catholics,  Without  expressing  a  decided 
opinion  on  this  point,  it  appears  to  me  that  the  pre- 
sent case  furnishes  no  facts  from  which  the  court  can  per- 
ceive an  abuse  of  discretion.  It  is  to  be  intended,  that 
al.  decrees,  solemnly  pronounced,  are  just,  until  the  con- 
trary appears.  The  surrogate  may  have  had  good  reasons 
to  guide  his  discretion,  of  which  we  are  not  conusant. 
Neither  of  the  parties,  from  any  proofs  in  this  cause,  ap- 
pear liable  to  any  objection,  except  that  the  respondent  is  a 
female  ;  and  this  has  been  urged  as  one.  It  is  a  sufficient 
answer,  to  say,  that  the  statute  makes  no  discrimination  as 
to  the  sexes  ;  and  certainly,  the  court  cannot  consider  thafc 
an  objection,  which  the  legislature  have  not.  In  my  opi- 
nion, the  decree  appealed  from  ought  to  be  affirmed. 

Decree  of  affirmance. 


*  153  *  Paschal  N.  Smith,  President  of  the  Columbian  In- 

surance Company,  against  William  Bell,  Joseph 
Bell,  and  Samuel  Watson. 


To  constitute  a  IN  error,  upon  a  bill  of  exceptions,  tendered  and  sealed 
loss  of  ashiivby  on  tne  tri^  °f  tn's  cause?  at  the  circuit  court,  in  the  city  of 
tuT perils'1  'in-  New-York,  in  which  the  now  defendants  were  plaintiffs. 

sureil      against, 

she  n.ust  be  injured  to  the  amount  of  half  her  value,  or  more,  after  deducting  the  one-third, 
new  lor  old,  allowed  the  underwriter  ;  that  is,  she  must  bo  injured  to  the  extent  of  three- 
tburtiis  of  her  value,  or  more. 


STATE  OF  NEW-YORK.  153 

The  action  was  on  a  policy   of  insurance  on  the  ship      ALBANY, 
Mary-Ann,  valuedt  at  14,000  dollars,  "  at  and  from  Charles-      ^J^, 
ton  to  Glasgow,  and  at  and  from  thence  to  Philadelphia,  or         Smith 
one  other  port  in  the  United  Slates."  .  The  plaintiffs  went    Bell  fc  others. 
for  a  technical   total  loss,  in   consequence    of  the  vessel's    —————— 

having  been  stranded  on  the  coast  of  Scotland,  and  injured 
to  an  extent  which  required  7,221  dollars  to  repair.  They 
gave  in  evidence  a  subsequent  sale  of  the  vessel  at  Gree- 
nock, on  account  of  those  who  might  be  concerned,  the 
purchase  by  the  firm  of  Archibald  Campbell  £s?  Co.  and  her 
reparation  at  an  expense  exceeding  half  her  value.  The 
defendants  relied  on  their  having  paid  into  court  the  sum 
of  5,100  dollars,  contending,  that  as  the  amount  of  ex- 
penditure for  repairs  was  only  7,221  dollars,  and  they 
were  entitled  to  a  deduction  of  one-third,  new  for  old, 
they  were  chargeable  with  only  4,884  dollars  32  cents, 
which,  not  amounting  to  half  the  value  of  the  vessel,  could 
not  constitute  a  technical  total  loss.  That,  therefore,  as  they 
had  paid  into  court,  5,100  dollars,  the  verdict  ought  to  be 
in  their  favour,  it  being   the  law,  that  the  allowance*  of  *  155 

one-third,  new  for  old,  should  be  made,  before  the  right 
of  recovering  as  for  a  technical  total  loss,  on  account  of 
damage  sustained  under  the  policy,  could  arise. 

The  judge,  however,  at  nisi  prius,  thinking  otherwise, 
the  verdict  was,  under  his  direction,  given  for  the  plain- 
tiffs, and  the  case  now  came  up  on  this  single  question ; 
whether  the  underwriter  on  a  ship  is  liable  for  a  total  loss, 
when  the  injury  she  receives  from  the  perils  insured  against, 
deteriorate  her  more  than  half,  without  deducting  the  one- 
third,  new  for  old  ;  or,  whether  the  one-third,  new  for  old, 
must  not  first  be  allowed  the  insurer,  and  the  injury,  after 
that  deduction,  amount  to  the  half  her  worth,  or  more  ?f       f  i  ^  not  pre. 

The  determination  at  nisi  prius,  was  founded  on  a  de-  ^j£tthearffUi 
cision  of  the  supreme  court,  in  the  case  of  Dupuij  v.  United 

■J-  There  is  some  uncertainty  as  to  this  in  the  printed  case.  The  first  page 
states  it  to  be  an  open  policy ;  the  second,  (hat  "  in  and  hy"  the  policy  sh». 
was  "  valued  at,"  (kc. 


154 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1 805. 


Smith 
v. 

Bell  &  others. 


Insurance  Company,  in  which,  from  the  notes  of  Kent,  Ch»  J# 
it  appears  the  court  ruled  to  this  effect. 

Where  the  repairs  are  equal  to  half  the  value,  and  more, 
the  insured  have  a  right  to  abandon.  The  rule  is  general, 
and  has  no  reference  to  the  distinction  of  new  for  old.  It 
is  the  actual  expenditure,  or  damage  which  is  taken  into 
view,  and  on  the  abandonment,  the  insurer  has  all  the 
benefit  of  the  repairs.  The  rule  of  deducting  one  third, 
new  for  old,  can  be  applied  only  in  a  case  of  partial  loss. 
Here  there  was  a  clear  case  for  abandonment,  and  the 
plaintiff  must  have  judgment. 


*  155 


Per  Curiam,  delivered  by  Lansing,  Chancellor.  On  this 
case,  only  two  questions  are  presented  for  the  consideration 
of  the  court.  1st.  Whether,  on  a  policy  of  insurance,  on  the 
estimate  of  repairs  of  a  *vessel,  injured  by  any  of  the 
perils  insured  against,  new  materials  substituted  for  the  old, 
do  not  entitle  the  insurer  to  an  allowance  ?  And  if  so,  2d. 
At  what  period  is  the  allowance  to  be  admitted  ? 

These  questions  are  open  here.  They  must,  in  a  great 
measure,  depend  upon  general  reasoning,  drawn  from  the 
nature  of  the  contract  of  insurance,  and  that  reasoning  may 
be  comprised  in  very  narrow  limits 

The  vessels  employed  in  commercial  enterprises,  are  of 
various  degrees  of  strength  and  durability,  and  more  or  less 
adapted  to  resist  the  perils  of  the  seas ;  but  the  lowest 
grade  in  which  they  are  recognised,  as  subjects  of  insur 
ranee,  is  when  they  are  barely  seaworthy. 

The  hull,  masts,  sails  and  rigging  of  a  vessel  may  be  in 
a  situation  to  constitute  her  seaworthy,  and  yet  be  much 
inferior  to  what  they  were  when  they  came  from  the  hands 
of  the  workmen  who  constructed  them ;  and  a  regular 
gradation  may  easily  be  conceived  between  a  vessel  perfect- 
ly new,  well-built,  rigged  and  furnished,  and  one  that  is 
barely  seaworthy.  When  an  injury  is  sustained  by  a  ves- 
sel of  the  latter  description,  and  it  becomes  necessary  to 
supply  her  old  masts,  timbers,  sails  and  rigging,  with  new, 


STATE  OF  NEW-YORK.  155 

it  is  evident  that  in  all  these  particulars,  she  must,  in  most  ALBANY, 

instances,  be  placed  in  a  better  state  by  the  repairs,  than  ^^v^J 

she  was  before  the  injury  received,  the  ordinary  wear  and  Smith 

tear  not  being  within   the  purview  of  the  policy.     Hence,  Bell  is  other*. 

the  repairs  are  carried  to  a  point  beyond  the   mere  rein- 

statement  of  the  vessel,  and  beyond  the  indemnity  in- 
tended. m  156 

*  In  the  case  of  Da  Costa  v.  NewnhamA  determined  in  the  t^U.&E.  407. 

4i3.  4n. 
British  court  of  king's  bench,    since    the   revolution,  the 

usage  which  obtained  with  respect  to  the  repairs  of  allow- 
ing one-third,  new  for  old,  seems  to  have  been  acknow- 
ledged, and  it  is  now  urged  in  argument,  that  at  any  rate, 
whether  or  not  the  defendant  was  entitled  to  this  allowance, 
was  a  question  for  the  jury,  as  it  depended  upon  usage* 
Buller,  Justice,  speaks  of  it  as  a  usual  allowance,  and  Ash- 
hurst,  J.  observes,  that  the  allowance  of  one-third  of  the 
repairs,  is  the  rule,  where  the  ship  is  repaired  and  deliver- 
ed over  again  to  the  owner,  for  his  benefit.  That  case 
arose  on  a  technical  total  loss,  which  the  insured  did  not 
avail  himself  of,  by  abandoning.  The  recovery  was  for  an 
average  loss  of  upwards  of  eighty  per  cent.  The  ship  had 
been  repaired  at  the  instance  of  the  insurers.  They  re- 
fusing to  pay  for  the  repairs,  a  bottomry  bond  was  execu- 
ted on  the  vessel,  in  consequence  of  which,  she  was  sold  to 
satisfy  the  debt. 

It  was  contended  that  the  value  of  one-third  of  the  re- 
pairs ought  to  be  deducted,  and  the  answer  to  this,  which 
appears  to  me  conclusive,  was,  that  the  repairs,  having 
added  to  the  value  of  the  vessel,  must  have  been  compen- 
sated for,  in  the  sale,  on  the  bottomry  bond,  and  the  owners 
never  had  the  ship,  so  they  could  not  be  the  better  for  the 
repairs. 

From  the  expressions  made  use  of  by  the  judges  who 
decided  this  case,  it  does  not  appear  that  they  relied  upon 
the  usage  of  any  particular  trade ;  but  upon  the  uspge  of 
trade  generally  ;  and  as  there  is  no  power  on  earth,  to  enact 
positive  regulations  for  the  *wide  extended  regions  of  ma-  »  157 


151 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.   1805. 


Smith 

v. 

Bell  &  others. 


*  158 


rine  enterprises,  general  usage,  established  from  the  prin- 
ciples of  general  convenience,  and  sanctioned  by  the  expe- 
rience and  practice  of  merchants,  is  the  only  source  of  ge- 
neral maritime  law. 

The  rule  that  constitutes  the  loss  of  more  than  one-half 
the  value  of  the  subject  insured,  a  total  loss,  is  a  positive 
one,  originating  in  the  convenience  of  having  a  determi- 
nate and  precise  test  n  all  cas  es,  which,  by  its  universality 
and  uniformity,  may  render  inquiries  into  minute  objects, 
rather  calculated  to  perplex  than  to  elucidate,  unnecessary. 

The  precise  difference  between  the  value  of  the  old  and 
new  materials,  must  generally  be  difficult  to  ascertain. 
That  difficulty  is  much  increased,  by  the  estimate  necessa- 
rily required  of  the  value  of  the  old,  at  the  home  port, 
and  of  the  new,  at  the  port  of  repair.  It  is,  therefore, 
desirable,  to  have  some  invariable  standard,  not  calculated, 
for  that  is  impracticable,  to  meet  precisely  all  the  variety  of 
cases,  which  may  occur,  so  as  to  render  exact  justice  in 
each  ;  but  such  a  rule  as  will  nearest  approximate  to  pro- 
ducing that  effect,  if  generally  applied.  That  effect,  if  a 
rule  respecting  the  subject  is  to  obtain,  it  was  not  contend- 
ed, might  not  be  produced  in  the  proportion  alluded  to  in 
the  case  of  Da  Costa  v.  Newnham.  From  the  nature  of 
the  contract  of  insurance,  I  think  the  allowance  for  repla- 
cing the  old  materials  with  the  new,  is  reasonable  and  pro- 
per ;  and  if  so,  that,  as  the  deduction  is  professedly  made, 
on  the  principle  that  the  value  of  the  subject  insured,  has 
been  enhanced  to  that  amount,  that  deduction  ought  to  be. 
made,  before  the  test  of  technical  total  loss  or  *not  is  ap- 
plied; for  the  doctrine  of  technical  total  loss  is  expressly 
founded  on  the  position  that  the  subject  insured,  has  been 
deteriorated  more  than  one-half. 

lam,  therefore,  of  opinion,  that  the  judgment  of  the  su- 
preme court  be  reversed. 


Judgment  of  reversal. 


STATE  OF  NEW-YORK.  158 


Paschal  N.  Smith  against  Joaquim  L.  Stcinbach. 

IN  error  upon  a  judgment  pronounced  by  the  supreme  A  policy  on, 
courtf  in  favour  of  the  defendant,  on  a  demurrer  to  evi-  !|'^ ft'\,  B*  ^ 
dence.  ?*?    P',rt»  ,f" 

taches    on     the 

The  count  averred  a  loss  under  the  policy  from  arrest  commencement 

1         •  di      lading    t»" 

and  detention  by  the  Spanish  government.     The  testimony  goods  0,»  board. 

'  ,  A  >essel    seized 

to  support  this,  and  demurred  to   on   the   trial,  showed  an   on  suspicion  of  a 

i       r    •    i        i-i        i  •      /-i     r  i  ti  breach    of  neu- 

msurance  on  the  freight  ot  the  shipper/ than ne,  then  at  Bar-  trality    is    not, 

celona,  effected  on  the  23d  of  October,   1800;  a  seizure   of  o'^maunoe  ttTbe 

the  vessel  by  the  Spanish    government,    in   the   September  \M  ?u,5  of  ,11 
J  r  o  i  /  breach    ot   neu- 

preceding,  on   suspicion,    that    "the  captain   had  aided  a  tml  conduct.  An 

,  abandonment  is 

British  frigate,  in  cutting   out,   and   capturing  two  Dutch  never  t»o  late  if 

the  loss  continue 

vessels.       An  abandonment  on  the  30th  day  of  December,  total  at  the  time 

.  ....  .    «  ,  .  of    the     action 

1801,  between  which  time  and  September,  1800  , a  witness,  brought.  A  de- 
examined  in  the  cause,  proved  that  opportunities  from  Bar-  ^""""confesses 
eclona  to  Nexv-Tork  were  frequent,  and  had  occurred,  the^ury  •oufci 
Lastly,  a*  subsisting  detention  in  July,  1802.  thel/ideut?0™ 

seizure  by  a    fo- 
reign state,  of  a 

Kent,  Ch.  J.  read  the  opinion  of  the  supreme  court  a3  vessel  in  a  port 

•  »r t*>     t>     'r»      m  ot"  ll,at  state """ 

delivered  by  Livingston,  J.  from   2   .A/.   T.    1.   R.    *130.  der  a  suspicion 

of  a   breach    of 
neutrality,   is    a 

Mr.  President.  Several  objections  were  made  to  the  plain-  loss  within  the 

J  clause  in  a  poli- 

tiff's  right   of  recovering.     1st.    It   was  alleged   that  the  cy  of  insurance 

,,....„,.  „  ,       against  the  res- 

voyage  contemplated,  while  the  Lalnarine  was  at  Barcelo-  train t of prinoea, 
na,  was  different  from  the  one  insured,  and  that  therefore     u       *  159 
the  risk  never  commenced.     The  insurance   being   at   and 
from  Barcelona,  it  may  admit  of  doubt,    whether,    as   the 
loss  happened  there,  the  defendant  would  not  be  liable,  al- 
though a  voyage  to  the  Havanna  were  in   contemplation. 
But  on  this  point  of  law,  we  gave  no  opinion,  because   it 
was  sufficiently  proved,  that  the  vessel   was   destined  for 
Baltimore.     Thus  have  the  jury  found,  in   another  action 
on  a  policy  on  the  ship,  nor  could  their  verdict    have  been 
different,    without    disregarding  all   the   testimony  in   the 
■  •:.  .V.   r.  T.  It.  159  to  134. 
s  s 


159 


CASES  IN  ERROR  IN  THE 


ALBANY, 
Feb.  1805. 


*  160 


cause.     The  defendants    themselves  were  awarethat  this 
finding  comported  with  the  evidence,  and,  accordingly,  di- 
rected their  principal  attack  against  the  testimony    itself  j 
for  they  said,  2d.  That  Mumford  was   the  plaintiff's   wit- 
ness, and    therefore   could   not  be    discredited    by   him. 
"Whether  this  gentleman  be  regarded  as  the  witness  of  the 
one  or  of  the  other  party,  is  not  very  material  in  deciding 
this  cause  :  he  had  been  examined  out  of  court,  at  the  in- 
stance of  the  defendants,  and  cross-examined  by  the  plain- 
tiff, who  produced  his   deposition  on  the    trial.     Perhaps 
the  best  general  rule  in  such  cases  would   be,  to  consider 
the  witness,  if  his  deposition  be  read,  as  belonging  to  the 
party  on  whose  application  he  was  examined,  without  any 
regard  to  the  person  who  may  finally  make  use  of  it.     But 
without  deciding  this  point,  we  thought  nothing  was   done 
by  the  plaintiff  to  discredit  Mumford,  even  if  he  had   been 
his  witness.     It  is  not  every  mistake  which  a  witness  may 
make,   when   speaking  from   memory,  that  will  discredit 
him,  *and  it  would  be  a  strange  rule,  indeed,  that  a  party 
producing  a  witness,  should  not  be  permitted,  even  by  the 
witness  himself,  to  correct  a  mistake  which  he  may   have 
committed.     Nothing    more    was    done.     Mumford   had 
sworn,  that  from  certain   papers,    the    destination   of  the 
cargo,  according  to  his  recollection,  appeared  to  be  for  the 
Rwoanna:  after  this,  there  could  be  no    impropriety   in 
showing  him  the  papers  to  which  he  alluded,  or  any  other 
to  refresh  his  memory,  and  to  enable   him  to  correct   his 
error  if  he  had  made  one.     This  was  no  imputation  on  his 
character ;  it  neither  rendered  him  infamous,  nor  unworthy 
of  credit  as  to  the  other  point  to  which  he  had  deposed:  It 
discovered  in  the  witness  a  laudable  promptitude  to  rectify 
a  mistake,  into  which  an  imperfect  recollection  had  betray- 
ed him,  and  thus  added  to,  rather  than  detracted  from,  the 
weight  of  his  testimony.     3d.   The  exhibits  B.  and  C.  be- 
ing only  copies,  should  not,  it  was  said,  have  been  produ- 
ced.    If  no  allusion  had  been   made  to  these   papers  by 


STATE  OF  NEW-YORK.  160 

Mumford,  they  could  not  have  been  produced,  to  show  the  ALBANY, 
real  object  of  this  voyage,  but  he  had  already  testified  that 
he  had  made  out  certain  claims  against  the  Spanish  govern- 
ment,  for  the  Catharine  and  her  cargo,  which  stated  the 
vessel  to  be  bound  directly  for  the  West  Indies;  these  pa-  — — — 
pers,  he  added,  were  lodged  in  the  consulate  office  at  Bar- 
celona. Having  sworn  thus  far  from  memory,  the  plaintiff 
had  a  right  to  refresh  his  recollection,  by  the  showing  him 
copies  of  the  claims  referred  to ;  on  inspection,  he  might 
probably  be  able  to  determine  whether  they  were  true  co- 
pies or  not,  and  certainly  if  he  believed  them  true,  they 
would  furnish  better  evidence  *of  what  the  originals  con-  *  161 

tained,  than  any  parol   account  of  their  contents,    which 
was  the  only  way  in  which  the   defendants   had    attempted 
to  prove  them.     There  is    no  reason  to  say  the  originals 
were  in  the  plaintiff's  possession.     They  remained  in  a  pub- 
lic office  in  Spain :  and  this  kind   of  inferior  proof    was 
rendered  proper  by  the  defendants'   own    conduct.     They 
had  not  only  examined  the   witness,  as  to  the   contents  of 
these  papers,  but  gave  the  plaintiff  every  reason  to  believe, 
that  nothing  would  be  required  of  him,  but  proof  that  the 
property  was  American.    4th.    The  abandonment,  it   was 
said,  was  too  late.     The  Catharine  was  seized  in   Septem- 
her,  1800,  and  not  abandoned  until  fifteen  months   thereaf- 
ter.    It  has  already  been  decided  by  the  supreme  court,   in 
Earl  v.  Shaw,  that  an  abandonment  may  be  made  at  any 
time  after  the  accident ;  provided,  at  the  date  of  the   aban- 
donment, the  loss  still  continue  total.     This  being  the  case 
here,  the  abandonment  was  in  season.  5th.  It  is  contended, 
that  Mr.  Mumford  was  mistaken  or  surprised  on  his  cross- 
examination,  and  that,  therefore,   a  new  trial   should  be 
had.     For  this  purpose,  his  affidavit  was  produced,  taken 
nine  months  after  the  trial,   in  which  he   stated,    that  the 
captions  of  the  exhibits  B.  and  C.  were  not  shown  to   him, 
to  the  best  of  his  knowledge  and  belief,    and  endeavoured 
to  explain  why  they  were  made  as  they  appeared  ;    to    vit, 
ioj>revent  endangering  the  insurance.    This  explanation 


161  CASES  IN  ERROR  IN  THE 

ALBANY,  came  too  late  ;  a  •witness  under  examination  may  explain 
and  correct  himself,  but  it  would  be  dangerous  and  impro- 
per to  receive  any  elucidation  from  him,  after  the  trial,  and 
especially  after  the  lapse  of  so  many   months:  besides,  the 

^     fi2  ~  defendants  were  apprized  of  his  deposition,  long  *before  the 

trial*  and  were  without  excuse,  for  not  calling  on  him  then, 
to  make  such  explanations  as  might  have  been  deemed  im- 
portant 6'h.  But  it  was  said  there  had  been  a  discovery  of 
new  evidence,  and  for  that  reason  there  should  be  another 
trial.  It  was  also  said,  that  if  a  new  trial  had  been  grant- 
eel,  there  were  two  witnesses  who  were  not  known  to  the 
defendants  at  the  time  of  the  trial,  who  could  testify  as  to 
the  destination  of  the  Catharine.  This  was  the  fact  princi- 
pally controverted  on  the  former  trial,  and  we  were  applied 
to  for  another,  merely  because  all  the  witnesses  who  knew 

tltw  no  ground   something  of  the  matter,  had  not  been  examined-!     Every 

for  the  COOK   to  ...  .  iiii-i.ii 

grar.i  a  new  ni-  one  must  perceive  the  inconvenience  and  delay  which  would 

caiie(fi^Tn.veSa  arise  from  granting  new  trials,  upon  the  discovery   of  new 

j5fiSi"£|W1  testimony,  or  other  witnesses  to  the    same    fact.     It  often 

■pppoaed  ground  ham'ns,  that  neither  party  knows  all  the  persons   who  may 

of    mcoiiipeten-      '     :  r         '  »        ■>  • 

cy,  where  ano    j->e  acquainted  with  some  of  the   circumstances   relating  to 

ther  witness  who  . 

•was  called,  cs-  the  point  hi  controversy ;  ir  a  suggestion,  then,  ol  the  pre- 

2mehfoct,t  ami  sent  kind  be  listened  to,  a  second,  if  not  a  third  and  a  fourth 

*«?edfeupon>r0a  trial,  may  always  be  had  :  there  may  be  many  persons   yet 

collateral   pomt  unicnown  to  the  defendants,  who  may  be  material  witnesses 

on     which     the  .  J 

verdict   turned.   jn  t>nis  cause,  and  this  may  continue  to  be  the  case  after  a 

Edwards  v.  E-  .... 

vans,  3  East,  dozen  trials.  Cases  may  occur  in  which,  if  great  doubts 
exist,  as  to  the  first  decision,  it  may  be  proper,  on  the  dis- 
covery of  -further  witnesses,  even  to  the  same  fact,  to  open 
the  cause  for  a  second  discussion  ;  but  this  is  not  one  of 
them.  The  principal  fact  here  was  clearly  proved,  and  if 
Lewis  and  Barnes  had  both  been  examined,  it  is  very  un- 
certain whether  the  result  would  not  have  been  the  same. 

■*  16°  *  Pendleton,  for  the  plaintiff.     The  effect  of  a  demurrer 

to  evidence  is,  that  the  demurrant,  admitting  all  the  facts 
which  appear  in  evidence  on  the  trial,  still  says  they.are 


STATE  OF  NEW-YORK.  163 

not  sufficient  to  entitle  the    partv  who  produces  them,  to  ALBANY, 

•        ,       •  '.  ,.         .      -  ,  Feb.   1805. 

recover  or  maintain  the  issue.     The  proceeaing  is  founded 


on  this  principle,  that  where  facts  are  agreed  on,  there  is 
no  occasion  for  the  determination  of  a  jury ;  for,  all  that 
is  then  necessary,  is  to  pronounce  the  law  on  them.  But 
when  the  facts  are  not  agreed  to,  then  they  go  to  a  jury  to 
determine  their  existence.  In  this  case  the  facts  stated  are 
acknowledged.  The  court  is  now  to  decide  whether  every 
fact  necessary  to  entitle  to  a  recovery  for  the  loss  claimed, 
hus  been  proved.  If  not,  we  think  ourselves  justified  in 
saying  there  must  be  a  reversal ;  because  it  is,  in  all  actions, 
the  duty  of  a  plaintiff  to  make  good  his  claim,  it  being 
never  required  of  a  defendant,  to  show  negatively,  that 
there  is  no  title  to  a  recovery.  An  insured,  then,  ought 
to  establish,  that  the  subject  matter  was  at  the  risk  of  the 
underwriter ;  that  it  was  in  such  a  situation,  as  to  be  with- 
in the  terms  of  the  policy,  and  the  nature  of  the  loss  such 
as  will  authorize  a  resort  to  the  assurer.  On  the  present 
occasion,  it  should  have  been  made  to  appear,  not  only  that 
the  Catharine  was  at  Barcelona,  but  bound  to  Baltimore,  on 
the  voyage  insured,  and  that  under  these  circumstances, 
she  was  seized.  To  this,  the  proof  is  inadequate.  For, 
though  the  being  at  Barcelona,  and  the  seizure  are  esta- 
blished, there  is  a  defect  in  the  testimony,  as  to  the  port  of 
destination  ;  unless,  indeed,  the  court  may  infer  that  the 
Catharine  was  to  go  on  the  voyage  described,  ^merely  from  #  164 

her  being  at  the  port  from  whence  insured.  This  can 
never  be  a  matter  of  inference,  for  it  is  laid  down,  that 
"  the  loss  must  appear  to  have  happened  during  the  con- 
tinuance of  the  risk.'1  Marsh.  615.  In  Wooldridge  v. 
Boy  dell,  Doug.  16.  the  words  were  "at  and  from  Mary- 
land to  Cadiz,"  but  because  it  was  not  shown  that  the  ves- 
sel was  bound  on  the  voyage  insured,  it  was  held  that  the 
policy  did  not  attach,  and  the  plaintiff  not  entitled  to  re- 
cover. The  same  principle  is  found  in  Murdoch  v.  Potts, 
Marsh.  230.  The  mere  being  at  a  port  does  not  compre- 
hend sufficient  proof  that  the  vessel  was  there  for  the  pur- 


164 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


*  165 


pose  of  pursuing  the  voyage  described.  Though  a  demur- 
rer to  evidence  admits  the  facts  proved,  it  does  not  warrant 
the  presumption  of  a  fact  not  in  evidence.  If  such  may  be 
inferred,  the  party  demurred  to  should  specify  them,  and 
is  not  bound  to  join  in  demurrer  till  they  be  admitted  or 
proved.  If,  however,  such  fact  be  material  for  the  deter- 
mination of  the  cause,  as  it  neither  admitted  nor  proved, 
but  only  inferred,  there  should  be  a  venire  de  novo  directed* 
This,  however,  is  not  that  on  which  we  principally  rely. 
We  contend,  that  as  the  plaintiff  founds  his  claim  on  a 
seizure  upon  suspicion  of  an  act  of  his  agent,  which,  if 
true,  would  amount  to  a  violation  of  neutrality,  and  vacate 
the  policy,  he  was  bound  also  to  establish  that  there  was 
no  ground  for  the  suspicion.  Not  having  done  so,  and 
joining  in  demurrer,  he  has  admitted  the  cause  of  suspicion 
to  be  well  founded,  and  cannot,  therefore,  recover.  We 
insist  also,  that  the  rule  adopted  in  the  supreme  court  of 
allowing  the  underwriter  at  any  period  to  bring  his  action, 
and  recover  *as  for  a  total  loss,  if  the  loss  then  continue 
total,  is  erroneous.  The  principle  of  insurance  law  is, 
that  the  assured,  when  informed  of  an  event  by  which  he 
is  entitled  to  abandon,  ought  to  elect  to  do  so  within  a  rea- 
sonable time.  If  within  such  time  this  be  not  done,  it  is 
to  be  presumed  that  he  has  elected  not  to  abandon,  and  the 
underwriter  will  be  liable  only  to  an  average  loss.  In 
Marshall,  508.  the  rule  on  this  subject  is  accurately  stated. 
He  says,  "  that  as  soon  as  the  insured  receives  advice  of 
a  total  loss,  he  must  make  his  election,  whether  he  will 
abandon  or  not.  If  he  determine  to  abandon,  he  must 
give  the  underwriters  notice  of  this,  within  a  reasonable  time •, 
after  the  intelligence  arrives  ;  and  any  unnecessary  delay  in 
giving  this  notice,  will  amount  to  a  waiver  of  his  right  to 
abandon ;  for  unless  the  owner  does  some  act,  signifying 
his  intention  to  abandon,  it  will  be  only  a  partial  loss, 
whatever  may  be  the  nature  of  the  case,  or  the  extent  of 
the  damage."  This  doctrine  is  justified  by  reason,  as  well 
as  authority.    Abandonment  is  the  act  by  which  the  as- 


STATE  OF  NEW-YORK.  165 

sured  transfers  to  the  underwriter  the  chance  of  recover-     ALBANY, 

•  r      ,  ,  .  Feb.  1805. 

ing  what  is  saved,  and  calls  upon  him  as  it  the  subject  in- 
sured had  been  totally  lost.  For  where  there  has  been  an 
actual  total  loss,  there  can  be  no  abandonment.  For  it  is 
founded  on  a  supposition  that  something  has  been  saved,  ™ 
or  may  be  so.  It  is,  however,  an  extreme  remedy,  and 
allowable  only  in  extreme  cases.  If  the  property  be  in 
such  a  situation,  that  it  may  be  recovered,  the  equity  of 
the  law  says,  we  will  not  oblige  the  assured  to  wait  the 
event,  but  we  will  permit  him  to  call  on  his  underwriter, 
who  shall  take  the  chance  of  recovery.  Hence,  it  is  op- 
tional, whether  *an  insured  will  abandon  or  not.  "  The  *  *66 
insured  is  not  obliged  to  abandon  in  any  case.     He  has  an 

election."     Per  Lord   Mansfield,  Marsh.  494.f     But  his  t Jn  Hamilton*. 

»         •  •      Jrlcndcz. 

election  is  a  positive  act,  of  which  notice  must  be  given,  in 

order  to  place  the  underwriter  in  a   situation  to  look  after 
the  property.     What  act  is  to  be  done  to  evince  the  inten- 
tion of  not  abandoning.     None  that  is  overt.     It  can  be 
manifested  only  by  being  passive.     Therefore,  abstaining 
from   abandoning,  must  be  an   election  not  to  abandon. 
Proceeding  in  attempts  to  recover  the  property,  is  evidence 
that  an  abandonment  of  it  was  never  contemplated,  and  an 
indemnity  for  the   expenses  incurred,  all  that  was  looked 
forward  to.     Fourteen  months   passed  without  any  notice 
taken  of  the  accident.     After  such  a  lapse  of  time,  it  is  to 
be  presumed,  that  the  party  has  elected  to  run,  himself, 
the  chance  of  recovery.     If  not,  and  no  limitation  be  put 
to   the  period  within  which  an   insured  must  elect,  it  can 
never  be  known  to  an  underwriter,  when  his  responsibility 
ceases ;  it  may  last  for  ever.   The  convenience  of  the  thing, 
therefore,  requires,  that  abandonments  should  be  allowed 
only  within  a  reasonable  time,  and  that  should  be  limited 
by  the  period  within  which  communication  is  in  general  re- 
ceived, unless  it  be  shown  that  none  has  arrived.     The 
contrary  doctrine  opens  a  door  to  fraud,  and   affords  an 
opportunity  to   speculate  on  the  underwriter.     Under  » 
particular  clause  in  our  policies,  the  underwriter  is  to  pay 


166  CASES  IN  ERROR  IN  THE 

ALBANY,  all  charges  incurred  in  defending  the  subject  of  his  p6licya 
Is  the  assured  to  go  on  for  any  length  of  time,  involving 
his  insurer  to  any  amount  of  expenses,  and  if  the  property 
be  recovered,  take  it  to  ^himself,  if  not,  claim  for  a  total 
loss,  and  demand  payment  of  the  expenses  also  ?  Surely, 
where  the  whole  of  the  subscription  is  to  be  required,  the 
insurer  ought  to  have  a  discretion  allowed  him,  to  pay  the 
amount,  and  relinquish  the  pursuit.  By  such  a  system, 
the  assured  cannot  suffer,  though,  by  rejecting  it,  the  as- 
surer may.  The  underwriter  has  a  right  to  insist  on  be- 
ing put  in  a  situation  to  act  for  himself,  and  not  to  have 
forced  upon  him  an  agent,  whose  interest  it  is  to  hazard 
every  kind  of  expenditure,  because,  whatever  may  be  the 
result,  he  cannot  lose,  and  may  gain.  It  is  inequitable, 
that  the  underwritten  should,  at  his  pleasure,  wait  the  ter- 
mination of  the  accident,  before  he  abandons,  and  yet  the 
underwriter  not  be  able  to  act  for  himself,  but  at  the  per- 
mission of  the  insured.  He  ought  to  be  obliged  to  elect  to 
abandon  or  not,  before  the  consequences  of  the  event  are 
known,  and  not  to  be  at  liberty,  without  notice,  to  saddle 
the  insurer  with  expenses  and  charges.  No  country  leaves 
the  period  of  abandonment  totally  in  the  breast  of  the  un- 
derwritten. By  many  nations,  the  time  within  which  to  be 
made  is  expressly  limited.  But  to  leave  it  without  .bounds 
is  held  to  be  law  in  this  state  alone.  The  English  decisions 
are  in  conformity  to  the  principles  I  have  advanced.  In 
Mitchell  v.  Edie,  Marsh.  510.  Mr.  Justice  Ashhurst  says, 
"  the  insured  are  bound  to  decide  and  signify  their  election 
to  the  underwriters  the  first  opportunity ;  for  though  the 
person  who  takes  upon  him  to  act  on  the  occasion,  for  the 
benefit  of  all  concerned,  is  not  the  agent  of  the  insured, 
yet,  if,  upon  receiving  notice  of  the  loss,  they  do  not  elect 
to  abandon,  they  adopt  the  acts  of  such  person,  and  make 
.  Mfofd  v  him  their  agent."  In  another  *case,f  the  having  sent  a 
iknkkeU,  Park  letter  of  attorney  to  receive  and  remit  the  proceeds  of  a 
cargo  sold,  and  lying  in  a  court  of  admiralty,  was  held  such 
an  intermeddling  as  to  destroy  the  right  to  abandon,  for, 


STATE  OF  NEW- YORK.  16* 

said  Lord  Kenyan,  "  the  insured   must  mate  his  election      ALBANY, 
speedily,  and  put  the  underwriter  in  a  situation  to  do  what 
is  necessary  for  the  preservation  of  the   property,  whether 
sold  or  unsold."     By  the  42d  art.  of  the  marine,  it  is  re- 
quired to  give  instant  notification  of  the  loss,  with  a  de-  ——————— 

claration  of  having  elected  to  abandon,  when  the  period  al- 
lowed so  to  do,  has  expired.  2  Emer.  180.  From  this,  ic 
appears,  that  the  principle  we  contend  for,  is  acknowledged 
even  by  the  law  of  France,  which  does  not  exact  an  im- 
mediate abandonment. 

Hoffman  and  Harison,  contra.  A  demurrer  to  evidence 
not  only  admits  every  fact  which  has  been  offered  in  testi- 
mony, but  every  deduction  which,  from  those  facts,  a  jury 
might  make.  This  is  consonant  to  the  reason  of  the  thing. 
For,  as  by  such  a  proceeding,  the  case  is  taken  from  the 
jury  to  the  bench,  the  court  is  substituted  in  their  place, 
and  may  make  every  inference  they  might  draw.  By 
adopting  this  mode  of  procedure,  a  party  cannot  deprive 
his  adversary  of  any  advantages  a  jury  trial  would  afford. 
He  concedes  that  they  shall  all  be  his,  if  the  evidence  be 
determined  sufficient  to  maintain  the  issue.  After  the  ap- 
plicability and  legal  qualities  of  the  testimony  are  allowed, 
the  court  pronounces  the  judgment  in  conformity  to  what 
they  think  a  jury  would  have  been  warranted  in  determin- 
ing. These  principles  have  been  settled  in  the  English 
courts,  by  the  case  of  Cocksedge  v.  Fanshaxv,  Doug.  119. 
and  in  ours,  by  that  of  Livingston  v.  Shutz*  We  contend 
*that  the  circumstances  of  a  vesstl  being  at  a  port,  taking  *  169 

in  her  cargo  there,  and  a  policy  effected  on  the  freight  to 
arise  on  that  cargo,  from  the  port  where  she  was,  to  an- 
other, are  sufficient  to  warrant  an  inference,  that  she  was 
destined  for  the  port  to  which  insured.  But  we  are  told, 
that  having  shown  a  seizure  on  suspicion,  we  ought  to  have 
proved  that  suspicion  to  have  been  groundless,  or  it  must 
be  presumed  it  was  well  founded.  This  is  contrary  to 
evcrv  principle  of  law,  and  repugnant  to  the  nature  of  the 

T  t 


169 


ALBANY, 

Feb.  1805. 


Smith 
v. 

Stcinbach. 


#  170 


tYol.  1.31. 


CASES  IN  ERROR  IN  THE 

proceedings  now  before  the  court.     1st.  As  a  matter  of  de* 
fence,  it  ought  to  be  made  appear  by  the  now  plaintiff.     2d. 
As  the  demurrer  admits  the  fact  of  the  seizure,  it  is  to  re- 
quest  a  presumption  against  the  plaintiff's  own  admission. 
He  who  demurs  to  evidence,  asks  nothing  for  himself,  but 
denies  that  his  opponent  has  shown  any  right.     For  a  per- 
son tendering  a  demurrer,  no  presumption,  therefore,  can 
be  made,  as  he  concedes  all  presumptions  are  to  be  on  the 
side  of  his  adversary.     That  the  right  of  abandonment  is 
taken  away,  unless  exercised  immediately  after  notice  of  the 
loss,  is  not,  as  a  universal  rule,  warranted  by  the  cases 
cited.     They  establish  no  more  than  that,  when  the  restora- 
tion of  the  property,  or  any  other  circumstance,  shows  the 
loss  is  no  longer  total,  the  assured  cannot,  by  an  abandon- 
ment then  made,  convert  that  which  is  at  the  time  a  partial 
into  a  total  loss,  merely  because   it  had   once  technically 
subsisted.     Thus,  in  Mitchell  v.  Edie,  the  vessel,  after  be- 
ing captured  and  plundered,  was  restored,  but,  from  the 
taking  away  of  her  rigging,  obliged  to  make  for  a  port  of 
necessity,  where  the  proceeds  of  the  cargo  were   in  the 
hands  of  a  part  owner  for  near  three  years,  and  the  under- 
writers ^called  on  merely   because  he  had  failed.     The 
court  held  this  a  partial  loss,  not  to  be  turn-d  into  a  total 
one  by  abandonment.     So  in  Alhvood  v.  HenkeU,  the  vessel 
was  captured,  recaptured,  restored  on  salvage,  and  the  mo- 
ney  in   the   admiralty.     The   total  loss  had   ceased,  and, 
therefore,  there  could  be  no  abandonment.     On  this  prin- 
ciple, the  determination  of  Church  v.  Bedient  6?  Kimberltft 
proceeded.     If,  indeed,  the  underwriter  has  paid  the  loss, 
he  then  becomes  a  purchaser  of  the  subject  insured,  and 
though  it  be  afterwards   recovered,  it  will  belong  to  him. 
Da  Costa  v.  Firth,  4  Burr.  1966.     The  consequence   will 
be  the  same,  though  it  be,  in  fact,  restored  at  the  time  the 
amount  of  the  subscription  is  paid.     It  is  a  fallacy    to  say 
that  the  underwriter  is  injured  by  allowing  of  an  abandon- 
meat,  at  anytime,  whilst  the  loss  continues   total.      1  he 
assured  is,  by  the  policy,  warranted  in  prosecuting  for  the 


STATE  OF  NEW-YORK.  170 

recovery  of  the  property.  If  he  succeeds,  it  will  go  in  ALBANY, 
diminution  of  the  loss.  If  he  do  not,  he  has  acted  only  ^^^J-!^ 
according  to  his  authority,  and  as  the  loss  is  then  total,  the 
underwriter  is  of  course  liable  for  the  full  amount.  To 
adopt  the  rule  contended  for  by  the  now  plaintiff,  would  " 
render  almost  every  technical,  a  total  loss.  It  would  de- 
prive the  insurer  of  the  agency  of  the  insured,  and  oblige 
him  always  to  send  a  special  deputy  to  take  care  of  his 
concerns.  The  property  being  originally  that  of  the  as- 
sured, he  has  a  right  to  calculate  when  the  abandonment  is 
to  be  made. 

Pendleton,  in  reply,  referred  to  Gibson  and  'Johnson  v. 
Hunter,  2  H,  Black.  187.  in  support  of  his  positions  respect- 
ing a  demurrer  to   evidence,  and   insisted,  *that  the  spes  *  171 
recuperandi  was  a  part  of  the  insurer's  right,  and  ought  to 
be  abandoned  to  him. 

Per  Curiam,  delivered  by  Lansing,  Chancellor.  On 
this  case,  three  points  have  been  made.  1st.  Whether 
there  is  proof  that  the  freight  is  within  the  policy?  2d. 
Whether  the  insurer  is  bound  to  respond  for  the  loss  oc- 
casioned by  a  seizure,  on  suspicion  of  a  breach  ol  neutrali- 
ty ?  3d.  Whether  the  abandonment  was  not  too  late  to 
found  any  right  or  recovery  on  ? 

The  plaintiff,  by  the  demurrer  to  evidence,  has  admit- 
ted every  fact  which  the  jury-  could  have  found  from  the 
evidence.'!*  r  CW.w.?r  v. 

From  the  demurrer,  it  appears,  that  tne  delendav-t  to  l9r  j^^ton 
maintain  his  issue,  had  proved  that  De  Covert,  on  whose  ^"r'iutUis 
account  the  insurance  was  made,  was  owner  of  the  vessel, 
the  freight  of  which  was  insured  by  the  policy  ;  that  he  was 
an  American  citizen,  and  that  the  ship  was  purchased  in 
the  United  States  of  an  American  citizen.  It  is  anther 
stated,  that  in  the  policy  she  was  described  as  the  Ame  \  can 
ship  Catharine,  and  that  the  defendant  had  produced  the 
-necessary  preliminary  proofs  belore   the  pojcy  was  rtaJ. 


171  CASES  IN  ERROR  IN  THE 

ALBANY,  These  preliminary  proofs,  among  others,  from  the  obvious 
import  of  the  terms,  must  have  been  the  evidence  that  the 
policy  attached  to  the  ship  Catharine,  and,  of  course,  she 
was  an  American  bottom.     This  has  not  been  a  point  in 

controversy,  but  it  is  necessary  to  advert  to  it,  in  making 

certain  deductions,  which,    I  think,   must  determine  the 
first  point. 

The  policy,  on  freight,  was  on  a  voyage  "  at  arid  from 
Barcelona  to  Baltimore.'*''     The  ship  was  seized  in  the  har- 
bour of  Barcelona. 
*  172  *It  is  1^  down  as  a  rule,  that  if  an  insurance  be  "at 

and  from*  a  place,  the  risk  commences  from  the  time  of 
subscribing  the  policy,  if  the  ship  is  at  home.  If  abroad, 
from  the  first  moment  of  her  arrival  at  the  place  specified. 
2  Marsh.  615.  An  insurance  on  freight,  commences  at  the  time  the 
2%'**  i'«5i ""*'  E°°ds  are  *irst  on  aoard»  It  has  been  held  that  an  intention 
to  deviate  will  not  avoid  the  policy,  and  that  a  risk,  once 
commenced,  cannot  be  apportioned. 

If  these  principles  are  correct,  the  policy  attached  on  the 
freight  the  instant  the  goods  were  embarked  at  Barcelona, 
which,  as  related  to  the  ship,  was  a  foreign  port.  What- 
ever change  in  the  destination  of  the  vessel  might  have 
been  contemplated,  the  risk  having  commenced,  the  in- 
surer was  entitled  to  the  premium,  and  if  the  insured  had, 
by  changing  the  destination  of  the  voyage,  diminished  the 
risk,  by  a  deviation  not  warranted  by  the  policy,  he  would 
have  lost  his  money,  without  any  correspondent  benefit. 

Until  the  destination  of  the  vessel  was  actually  altered, 
she  was  covered  by  the  policy,  and  as  she  was  at  the  port 
of  departure,  unless  the  contrary  appears,  it  is  to  be  pre- 
sumed she  was  there  for  the  purpose  of  pursuing  her  voy- 
age to  Baltimore. 

As  to  the  second  point,  I  know  of  no  instance  in  which 
bare  suspicion  has  been  considered  as  proof  of  breach  of 
neutrality.  It  is  the  every  day's  practice  of  belligerents  to 
capture  and  send  into  port,  neutral  vessels  navigating  the 
ocean,   on  the  slightest  suspicion,  which  the  rapacity  of 


*  173 


STATE  OF  NEW-YORK.  |M 

the  captors  converts   into  confirmation  so  vehement    as  to      ALBANY 
amount  to  positive  proof ;  but  an  allegation  of  the  convic-       *^b.  1805. 
tion  by  *the  captors,  of  the  truth   of  such  suspicion,  can         Smith 
form  no  ground  for  judicial  decision,  or  to  infer  a  breach       Stei.,bach. 
of  neutral  duties.     There  is  no  other  difference  between  this  "~ 
case  and  that  of  stopping  a  vessel  on  the  seas,  on  suspicion, 
but  that  here,  the  seizure  was  in  port,  by  an  agent,  more  in- 
timately connected  with  the  government  than  those  agents 
who  search  and  send   in  vessels.     But  the   suspicions  of 
neither  can  be  a  guide  to  the  tribunals  of  our  country,  (who 
only  receive  foreign  judicial  acts  as  prima  facie  evidence,) 
unless  they  have  been  proved  to  be  well  founded. 

Within  the  intent  of  the  policy,  this  is  a  mere  act  of 
power,  a  restraint  by  a  foreign  prince. 

rl  he  doctrine  of  abandonment  is  only  adapted  to  the 
case  of  a  partial  loss,  connected  with  a  total  one,  by  the 
operation  of  law.  It  is  expressly  founded  on  the  consider* 
ation  that  the  subject  insured,  though  not  totally  annihila- 
ted, for  then,  nothing  would  be  left  for  abandonment,  is  so 
much  deteriorated  by  the  perils  insured  against,  as  not  to 
make  it  worth  holding  to  the  insured.  It  is  a  doctrine  cal- 
culated to  distinguish  between  average  and  technical  total 
loss,  as  far  as  respects  the  insurer,  not  to  create  new  du- 
ties, or  impose  new  burthens  on  him,  but  to  protect  him 
from  practices  to  which  he  might  be  exposed,  by  specula- 
tions on  the  state  of  the  markets,  or  other  contingencies, 
which  may  influence  the  value  of  the  property  insured. 

The  English  doctrine  on  this  subject  laid  down  by  Lord 
Mansfield,  in  the  case  of  Mitchell  v.  Edie^\  and  afterwards  \ID.&E.  cos. 
adopted  and  confirmed  by   Lord  Kenyon,    in  the  case  of 
Allwood  v.  Henkell,%  and  which  appears  to  me  well  founded,  *  purk,  172. 
is,  that  the  insured  must,  *in  the  first  instance,  make  their  -74 

election  whether  they  will  abandon  or  not. 

In  the  case  of  Hamilton  and  Mendez,§  Lord   Mansfield  §2Burr.U9S. 
observes,  "  the  plaintiff's  demand  is  for  an  indemnity ;  the 
action,  then,  must  be  founded  on  the  nature  of  his  dam- 
nification, as  it  really  is  at  the  time  of  the  action  brought. 


174  CASES  IN  ERROR  IN  THE 

ALBANY,     It  is  repugnant  upon  a  contract  of  indemnity  to  recover  as 

Feb.  1805.      {oratorios.;,  when  the  final  event  has  decided,  that  the 

Smith         damnification,  in  truth,  is   an  average,  perhaps   no  loss  at 

Steinbach.       all."     So  this  would  be  equally  repugnant  to  the  nature   of 

the  contract,  to  apply  the  doctrine  of  average  loss,  to  a  case 

in  which  the  final  event,  as  far  as  it  has  any  bearing  on  the 
point  in  controversy  between  the  parties,  has  determined  it 
a  real  total  loss.  For  the  ship  is  still  detained,  and,  if  she 
was  liberated,  the  freight  which  was  the  object  of  insu- 
rance, is  as  completely  lost,  as  if  she  had  been  sunk  in  the 
ocean. 

Whence,  then,  is  the  estimate  of  average  loss  to  be   ta- 
ken ?  and  what  would  the  abandonment  transfer,  from  the 
f  2  Dal  280.      insured  to  the  insurer  ?t 

Cumberland   v.       jt  -    certainlv  not  the  interest  of  the  insured  to  delay  an 
■xM'Call.  '  vi 

abandonment.     By  doing  so,  he  incurs  many  disadvantages. 

His  rights  on  the  policy  are  suspended,  and  any  event 
which  may  restore  the  property  insured,  however  much  in- 
jured, places  him  in  a  situation  to  recover  only  an  average 

loss. 

Upon  the  whole,  I  am  of  opinion  that  the  insured,  when 
the  loss  on  the  policy  happened,  had  it  in  his  election  to 
abandon.  That  by  his  delay  he  has  waived  his  right  of 
abandoning,  so  far  as  might  operate  to  convert  an  ave- 
rage, into  a  total  loss,  and  has  left  the  insurer  the  chance 
of  enjoying  the  advantage  ^arising  from  restoration,  inter- 
mediate the  time  in  which  he  waived  it,  and  bringing  his 
action,  so  as  to  preclude  him  from  recovering  for  a  techni- 
cal total  loss.  But  as  the  loss  has  continued  really  total, 
that  the  defendant  had  a  right  to  recover,  as  for  such  total 
loss.  I  am,  therefore,  clearly  of  opinion,  that  the  judg- 
ment of  the  supreme  court  is  correct,  and  that  it  ought  to 
be  affirmed. 

Judgment  of  affirmance. 


*  17S 


STATE  OF  NEW-YORK.  ITS 

Le  Roy  and  others,  Appellants,  against  Servis   and 
others,  Respondents. 

THE  facts  of  this  case  are  stated  in  vol.  1.  p.  1.  of  the 
introductory  cases,  but  as  the  opinion  there  is  that  of  Mr. 
Gold  only,  the  decision  of  the  court  is  now  given. 

Benson,  J.  I  premise,  that  in  a  case  otherwise  properly 
cognisable  in  a  court  of  law,  if  the  plaintiff,  for  want  of  a 
xvriting,  the  evidence  of  his  right,  is  obliged  to  sue  in  eqiu~ 
tyy  it  is  a  rule  there  that  he  must  verify  on  oath,  the  alle- 
gation that  the  writing  is  lost,  or  in  the  possession  of  the 
defendant ;  that  this  rule  is  in  the  same  reason  with  the 
rule  in  the  courts  of  law,  in  cases  of  pleas  to  the  juris- 
diction, foreign  pleas,  and  claims  of  cognisance,  and  is  in- 
tended only  to  prevent  a  change  or  transfer  of  jurisdiction, 
without  any  cause  shown  as  arising  from  facts  proved  on 
oath,  and  doth  not  diminish  or  deprive  the  defendant  of  any 
teal  advantage  of  defence ;  so,  that  the  proof,  although  not 
absolutely  *positive  and   conclusive,  but  less  precise   and  *  1T6 

full,  will  suffice.  That  in  order  to  confine  the  rule  to  its 
were  object,  if  the  bill  is  for  discovery  only,  or  if  it  is  for 
a  general  discovery  of  all  writings  in  the  possession  of  the 
defendant,  whatsoever  they  may  be,  and  where  it  is  to  be 
supposed  the  plaintiff  hath  no  particular  knowledge  of 
them,  but  yet  that  some  writings  of  some  kind,  in 
which  he  is  interested,  and  relative  to  the  property  he  seeks 
to  recover,  do  exist  and  are  in  the  possession  of  the  de- 
fendant, that  in  these  cases,  the  allegation  of  the  loss  of 
the  papers,  or  that  they  are  in  the  possession  of  the  defend- 
ant, need  not  be  on  oath.  That  until  some  decisions  in 
England,  within  ten  years  past,  it  hath  always  been  held, 
as  it  is  expressed  in  the  books,  that  "  a  demurrer  being  bad 
in  part,  must  be  overruled,"  for  it  is  not  like  a  plea 
**  which  may  be  allowed  in  part ;  but  a  demurrer  void  in 
fart  is  void  in  toto,  and  cannot  be  separated  "   M  that  a 


2T6  CASES  IN  ERROR  IN  THE 

ALBANY,      general  demurrer  to  the  whole  bill,  if  there  is  any  part  of 
n-^v-Nm/      the  bill  to  which  the  defendant  ought  to  put  in   an  answer, 
Le  Hoy        the  demurrer  being  entire,   must  be  overruled,"    u  that   a 
Servis.         demurrer  if  defective  in  part,  is  bad  for  the  whole,  for  it 
— cannot  be  split."     That  although  the  decisions  of  the   En- 
glish courts  are  deservedly  of  great  authority,  yet  the  rea- 
sons in  these  alluded  to,  "  the  supposed  hardship  on  a  de- 
fendant, if  he  cannot  avoid  the   expense  of  taking   a  copy 
of  a  long  bill,  if  there  chances  to  be  a  right  to  a  discovery," 
and  thereby  making  "  the  only  question  to  be,  whether  the 
plaintiff  should  be  put  to  the  expense  of  a  bill,  or    the  de- 
fendant of  a  new  demurrer,"  are   not  convincing ;    for  if 
*  177  the  defendant,    instead    of    a    general  demurrer  to   *the 

whole  bill  will  demur  particularly  to  each  separate  or  dis- 
tinct part  or  matter,  to  which  he  may  suppose  "  he  ought 
not  to  put  in  an  answer,"  the  demurrer  may  be  overruled 
as  to  some  parts  or  matters,  and  allowed  as  to  others ;  and 
the  defendant,  among  other  costs,  may  be  decreed  the  ex- 
pense of  so  much  of  the  copy  of  the  bill,  to  which  the  de- 
murrer was  allowed ;  so,  that  there  will  not,  in  that  re- 
spect, be  any  hardship  left  on  him.  It  may  be  also  stated, 
that  there  are  other  means,  and  within  the  powers  of  the 
court,  to  correct  the  mischief,  if  it  prevails,  of  filing  bills, 
of  an  undue  length,  containing  matters  to  which  the  defend- 
ant ought  not  to  answer,  preferably  to  merely  turning  the 
plaintiff  round,  and  subjecting  him  to  the  delay  and  ex- 
pense of  a  new  bill.  The  conclusion,  therefore,  is,  that 
there  hath  not  appeared  to  us  sufficient  reason  to  change  an* 
i  established  and  approved  practice  ;    and,   consequently,   if 

there  are  any  matters  in  the  bill,  to  which  the  defendants 
ought  to  have  put  in  an  answer,  the  demurrer  being  general, 
and  to  the  whole  bill,  must  be  overruled  in  the  whole.  This 
leads  to  an  examination  of  the  several  causes  of  demurrer. 
First  cause  of  demurrer.  The  defendants  object  to  the 
proof  as  arising  from  the  affidavit  of  the  complainant,  Boon; 
1st.  That  there  is  only  the  oath  of  one,  whereas  there  ought 
to  be  an  oath  from  every  of  the  complainants  ;  2dly.  That 


*  178 


STATE  OF  NEW-YORK.  177 

the  oath  ought  not  only  to  state  the  destruction  of  the  sup-  ALBANY, 
posed  writings,  but  also  that  the  deponents  have  them  not  )*-  ^j 
in  their  own  possession  ;  and,  3dly.  That  the  deponent  doth  Le  RoT 
not  swear  from  his  oxvn  knowledge,  but  from  the  informa-  Servis. 
tion  of  others.  Here  I  state  that  the  proof  of  *the  allega- 
tion of  the  loss  of  the  writing  is  restricted  to  the  oath  of 
the  party,  in  exclusion  of  the  oath  of  a  stranger ;  and, 
therefore,  if  the  circumstances  of  the  case  are  such,  as 
that  it  is  to  be  presumed  the  party  cannot  know  the  facts 
from  his  own  knowledge,  he  must  then,  from  necessity,  be 
admitted  to  testify  from  the  credib'e  information,  or  in 
other  words,  from  the  hearsay  of  others ;  that,  whenever 
the  law  admics  hearsay  testimony,  the  fact  is  then  as  com- 
petently thereby  proved  and  established,  as  if  the  person 
giving  testimony  was  to  testify  from  his  own  knowledge  ; 
that,  whenever  a  person  swears  from  the  credible  informa- 
tion of  others,  it  not  only  implies  that  he  hath  inquired  to 
an  extent,  and  in  a  manner,  to  produce  a  rational  belief 
that  the  fact  is  as  he  testifies  it  to  be,  but  it  also  excludes 
the  supposition  that  he  hath  any  reason  even  to  suspect  it 
to  be  otherwise  ;  that  a  distinction  is  to  be  taken  between 
the  cases,  where  the  writing  is  so  lost,  only,  as  that  it  can- 
not for  the  present  be  found,  yet  is  supposed  still  to  exist, 
and  the  cases  where  the  writing  is  wholly  destroyed,  and, 
therefore,  supposed  not  to  exist ;  and  that,  although  in 
some  of  the  former  cases,  it  may  be  proper,  in  order  to 
guard  against  evasion,  to  require  the  party  to  swear  also, 
that  he  hath  not  himself  the  writing  in  his  possession,  yet, 
that  in  the  latter  cases,  it  would  be  altogether  a  useless  ac- 
cumulation of  proof;  it  would  be  to  require  proof  of  an- 
other proposition  of  fact,  which  follows  as  a  necessary  logi- 
cal consequence  from  one  already  proved.  Assuming  it, 
therefore,  and  which,  I  think,  cannot  be  questioned,  that 
the  present  is  one  of  the  cases  in  which  proof  from  the  in- 
formation, or  hearsay  of  others,  is  to  be  received,  then  the 
fact  of  the  destruction  *of  the  supposed  conveyances  from  *  179 

the  original  patentees  to  Sir  William  Johnson,  is  duly  and 

u  u 


179  CASES  IN  ERROR  IN  THE 

ALBANY,      competently   proved ;    and,    consequently,  'he  affidavit   of 
v^^->^,      the  complainant,  Boon,  alone  is  sufficient,  so  that  the  first 
Le  Ro?        cause  of  demurrer  fails. 

Servis.  Second  cause  of  demurrer.     It  must  be  admitted,  that 

"*""  there  cannot  be  a  more  sound  or  salutary  principle  than  the 

one  on  which  this  cause  of  demurrer  proceeds ;  that  a  court 
of  equity  should  always  withhold  its  aid  and  countenance 
from  a  suitor,  whose  conduct  appears  in  any  part  such  as 
a  conscience  rightly  informed,  cannot  approve :  but  the 
principle  is  not  applicable  to  the  present  case.  The  sup- 
posed illegality  of  the  agreement  between  the  original  pa- 
tentees and  Sir  William  Johnson,  consists  in  its  being  in 
contravention  of  the  instruction  from  the  king  to  the  gover- 
nor, restraining  the  patents  for  lands  to  quantities  not  ex- 
ceeding 1,000  acres  to  each  patentee.  The  futility  of  this 
regulation  was  soon  discerned,  and  the  instruction  was,  for 
not  much  less,  if  any,  than  half  a  century  before  the  patent 
mentioned  in  the  bill  issued,  considered  altogether  as  a 
dead  letter,  and  the  compliance  with  it  a  mere  matter  of 
form.  But,  even  conceding  that  the  legality  of  an  agree- 
ment, similar  to  the  one  supposed  to  have  taken  place  be- 
tween the  patentees  and  Sir  William  Johnson,  might  be 
made  a  question,  yet  that  could  only  be  the  case  where  the 
agreement  was  before  the  Indian  purchase  ;  because,  im- 
mediately on  the  purchase,  the  king,  in  whose  name  these 
purchases  were  always  made,  became  trustee  for  the  per- 
sons to  whose  use  they  were  made,  and  the  trust,  possibly 
on  artificially  legal  principles,  might  have  been  limited  to  a 
*  180  ^quantity  not  exceeding  the  rate  of  1,000  acres  to  each 

person.  The  several  cestui  que  trusts,  however,  had  an 
equitable  interest  in  their  respective  shares,  which  they 
could  legally  assign,  and  agree  to  vest  the  title  at  law  in  the 
assignees,  on  the  issuing  of  the  patent ;  and,  as  it  doth  not 
appear  when  the  agreement  in  the  present  instance  was 
made,  in  respect  to  whether  before  or  after  the  Indian  pur- 
chase, the  illegality  of  it  cannot  come  under  consideration 
on  the  defendants'  demurrer.     It  was  a  matter  of  which 


STATE  OF  NEW-YORK.  180 

they  could  avail  themselves  bv  plea  only,  with  the  requisite      ALRANY, 
...  .  ..   ,      .  .„  .  Feb.  1805. 

averments   supplying  the  uncertainty  ot  the  hill,  as  to  the       v^^v>>-/ 

time  when  the  agreement  was  made.  L«  Koy 

Third  cause  of  demurrer.  The  answer  which  has  been  Seivis. 
given  to  this  cause  of  demurrer  is,  that  it  was  not  requisite 
for  the  defendants,  in  answering  the  bill,  to  declare,  either 
that  there  was  an  adverse  possession,  or  if  there  was,  then 
that  the  defendants  knew  it ;  but,  that  it  would  have  been 
sufficient  if  they  had  simply  admitted  that  their  vendors 
were  not,  at  the  time  of  purchase  by  them,  the  defendants, 
in  possession;  because,  whether  the  possession  was  vacant, 
or  whether  it  was  adversely  held  by  others,  and  if  the  latter, 
whether  the  defendants  knew  it,  which  ever  might  have 
been  the  fact,  was  wholly  immaterial.  This  answer,  it 
must  be  owned,  is  far  from  being  unsatisfactory  ;  at  the  same 
time,  the  principle  that  a  man  is  not  held  to  accuse  himself, 
is  so  estimable,  that  we  cannot  be  too  cautious  in  admitting 
distinctions  or  qualifications  of  it.  Therefore,  and  es- 
pecially as  the  discovery  sought  for  in  this  instance,  is  of 
a   fact  altogether    useless   in   the   complainants'   *case,    I  *  191 

should  have  supposed  it  more  safe,  if  a  particular  demurrer 
had  been  put  in  to  that  part  of  the  bill,  to  have  allowed  it, 
and  ordered  the  allegation  and  interrogatory  which  the  de- 
murrer supposes  to  be  exceptionable,  to  be  struck  out  of 
the  bill. 

Three  last  causes  of  demurrer.  I  shall  consider  these 
causes  together,  for  I  am  not  persuaded  they  might  not  all 
have  been  shown  under  the  last,  the  general  cause  of  de- 
murrer, they  being  essentially  the  same,  amounting  to  a 
denial  that  the  court  ought  to  grant  a  relief,  supposing  all 
the  allegations  in  the  bill  to  be  confessed,  which  is  only 
saying  in  other  words,  there  is  a  want  of  equity.  I  here 
remark,  that  it  is  ordinarily  premature  wholly  to  dismiss 
a  bill  on  a  demurrer  for  this  general  cause,  and  so,  as  it 
were,  at  the  threshold,  unless  the  complainant's  case  is, 
from  his  own  showing,  radically  such  that  no  discovery  or 
proof  can  possibly  make  it  a  proper  subject  of  equitable 


181  CASES  IN  ERROR  IN  THE 

ALBAKV,     jurisdiction.     Such  was  the  late  case  of  Munro  and  others, 
Feb.  i8<>5.       appellants,  v.  Allaire,   respondent,   decided    in    this    court, 
LeRoy        where  the   complainant  came  to  have  a  purchase  of  lands 
Ser'vis  perfected   and  confirmed  to  him,  the  supposed   sale   being 

■  -■■  made  by  trustees  under  a  will,  and  he  being  one,  and  not 
alleging  himself  also  a  cestui  que  trust,  one  of  the  legatees 
to  whom  the  money  arising  from  the  sale  was  to  be  paid, 
and  that  he,  although  a  trustee,  was  obliged  to  purchase, 
in  order  to  avoid  the  loss  to  himself  as  a  cestui  que  trust,  by 
a  sale  at  a  less  price :  for  it  is  to  be  remarked,  that  the  de- 
fendant doth  not  forego  or  waive  a  single  advantage  as  to 
the  merits,  or  the  point,  whether  the  complainant  hath 
equity  by  not  demurring.  He  may  equally  insist  on  the 
*  182  same  ^matters,  by  way  of  answer,  which  he   might  have 

done  by  demurrer,  and   if  he   should   even   omit  them  in 
the  answer,  he  may  still  avail  himself  of  them  in  argument 
on  the  final  hearing  of  the  cause  ;  my  opinion,  therefore, 
is,  that  the  bill  ought  to  have  been  retained,  and  that  the 
court  of  chancery  should  have  reserved  itself  on  the  ques- 
tion, whether  the    complainants  were   entitled  to  any,  or 
what  relief,  until  all  the  proofs,  either  as  arising  from  the 
answers  of  the  defendants,  or  otherwise,  had  come  in  j  and, 
consequently,  that  the  several  decrees  allowing  the  respec- 
tive demurrers  of  the  respondents,  and  dismissing  the  ap- 
pellants' bill,  be  reversed.     The  respondents  have  not  only 
put  in  separate  demurrers,  but  they  have  also  proceeded 
separately  to  decrees.     How  far,  or  by  v\hat  means,  a  court 
of  chancery  ought  to  restrain  and  regulate  the  right  of  de- 
fendants to  sever  in  their  defence,  so  as  to   prevent   them 
from  availing  themselves  of  it  solely  to  vex  the  complain- 
ants, are  matters  in  which  1  forbear  from  an  opinion  in  my 
place  in  this  court,  because  it  is  unnecessary  :     We  can, 
only  declare  and  establish  what  shall  be  the  consequences  of 
an  unnecessary  severance,  if  there  should  afterwards  be  an 
appeal,  and  a  judgment  of  reversal  for  the  complainants. 
This  may,  in  some  measure,  prevent  the  abuse  alluded  to. 
My  opinion,  therefore,  further  is,  that  each  respective  re- 


STATE  OF  NEW-YORK.  182 

spondent  in  the  present  appeal,  be  decreed  to  pay  the  appel-  ALBANY 

lants  for  their  costs  on   the  appeal,    a  sum  to  the  same  ^!^1^\ 

amount,  which  would  have  been  decreed  to  be  paid  by  them  Le  Uoy 

all  jointly,  if  they  had  joined  in  demurrer  in  the  court  SerVis. 

below.  "           ""!— " 


*DECREED.f  *  183 


f  Uth    March, 

1798. 


ON  hearing  counsel  on  this  appeal,  it  is  adjudged,  or- 
dered and  decreed  by  this  court,  that  the  several  decrees  of 
the  court  of  chancery  therein  complained  of,  allowing  the 
separate  demurrers  of  the  respondents  respectively,  to  the 
bill  of  complaint  of  the  appellants,  against  the  respondents, 
and  the  other  defendants  in  the  bill  named,  and  that  the 
said  bill,  as  it  respected  each  of  the  respondents,  should 
be  dismissed,  be  reversed;  and  further,  that  the  re- 
spondents severally  pay  to  the  appellants,  the  sum  of  30 
dollars  for  their  costs  on  this  appeal,  in  respect  to  each  re- 
spective decree  so  reversed,  and  that  the  cause  be  remitted 
back  to  the  said  court  of  chancery,  and  that  there,  such 
further  proceedings  shall  be  thereupon  had,  as  well  for  ex- 
ecution of  this  judgment,  order  and  decree,  as  otherwise, 
as  shall  be  agreeable  to  equity  and  justice. 


Peter  Jay  Munro,  Benjamin  Griffen,  Isaac  Sniffin, 
and  Mary  Palmer,  the  younger,  Appellants,  against 
Peter  Allaire,  Respondent. 

PETER  ALLAIRE,  cf  Marmaroneck,  in  the  county     A  purchase  by 

an  executor  who 

of  Westchester,  the  respondent  in  this  cause,  filed  his   bill  has  a  power  to 

«  <     r  sell    for  the  be- 

of  complaint,  some  time  in  the  year   one   thousand   seven  nefit  of  a  third 

.  .  .      person,  from  his 

hundred  and  ninety-five,  against  the   above  named  appel-  Cemm,  que  trutt 
lants,  and  therein   stated,    that  Benjamin  Palmer,  late   of  -m  equity,  and  a 

bill  by  him  for  a 
specific    perfor- 
mance cannot  be  maintained,  but  it  seems  that  a  purchase  by  a  trustee,  who  lS  also  a  cettui  que 
trust,  may,  if  to  sa  ve  the   property  from  loss,  be  sustained. 


183  CASES  IN  ERROR  IN  THE 

Marmaroneck  aforesaid,  being  seised  and  possessed  of  cer. 
tain  real  *and  personal  estate  in   the  said    bill   mentioned, 
Munr  •  and      executed  his  last  will  and  testament,  in  due  form  of  law,  and 
v.  thereby  directed  his  executors  to  sell  and  dispose  of  his  es- 

_t  tate,  real  and  personal,  within  one  year  after  his  decease,  to 

*  184  pay  all  his  just  debts,  and  funeral  charges,  and  as    to    the 

remainder  and  residue  of  the  monejs  arising  from  the  said 
sale,  of  his  real  and  personal  estate,  he  gave  and  bequeath- 
ed unto  his  son,  Thomas  Palmer,  eighty  pounds,  to  be  put 
out  at  interest  by  his  executors,  until  he  attained  the  age  of 
twenty-one  years  ;  that  the  interest  thereof  should  be  paid 
annually  to  his  wife,  and  should  his  son  die  before  he  at- 
tained the  age  of  twenty-one  years,  he  gave  the  said  sum 
of  eighty  pounds  to  his  said  wife,  Mary  Palmer,  one  of 
the  appellants,  and  devised  all  the  residue  and  remainder 
of  his  estate,  both  real  and  personal  (that  might  come  in- 
to the  hands  of  his  executors)  unto  her,  her  heirs,  execu- 
tors and  assigns  for  ever,  to  do  with  as  she  should  think 
meet ;  and  appointed  his  said  wife  executrix,  and  the  said 
Benjamin  Griffen,  and  the  said  Peter  Allaire,  executors  of 
the  said  will. 

The  bill  further  stated,  that  the  said  Benjamin  Palmer 
died  without  altering  or  revoking  his  will ;  that  the  appel- 
lant Benjamin  Griffen  and  the  said  Peter  Allaire,  proved  the 
same ;  that  the  appellant,  Mary  Palmer,  refused  to  prove  the 
will ;  or  intermeddle  with  the  said  estate,  as  she  was  not  able 
to  read  or  write  ;  that  soon  after  this,  the  appellant,  Isaac  Snif- 

jin,  wanted  to  purchase  her  right  in  the  said  estate,  and  offer- 
ed for  it  four  hundred  and  fifty  pounds  ;  that  the  appellant, 
Benjamin  Griffen,  advised  the  taking  of  that  sum  ;  that  the 
said  Mary  Palmer  *was  willing  to  take  that  price,  if  no 
more  could  be  obtained  ;  that  the  said  Peter  Allaire  was  de- 
sirous of  purchasing;  that  a  long  treaty  for  that  purpose 
took  place,  in  which  Judge  Tompkins  was  consulted  as  the 

friend  of  the  said  Mary  Palmer ;  the  proceedings  on  which 
consultation  the  said  Peter  Allaire  stated  by  his  bill,  were 
fairly  conducted  on  his  part ;  that  articles  for  the  said  pur- 

4 


*  185 


STATE  OF  NEW-YORK.  185 

chase,  at  the  price  of  six  hundred  pounds,  were  executed  ALBANY, 
by  the  said  Peter  Allaire,  and  the  said  Mary  Palmer,  and  \^>r>^ 
afterwards,  the  following  conveyance  was  made  to  him,  by  Ifaaxe  ami 
her,  of  all  her  right,  title  and  interest  in  the  estate  of  her  v.  * 

said  husband  ;  she  promising  to  give  a   better  conveyance,  AI 

if  that  should  be  found  defective. 

The  indenture  set  forth,  that  Mary  Palmer,  for  and  in 
consideration  of  six  hundred  pounds,  remised,  released, 
and  for  ever  quitclaimed,  and  by  these  presents,  made  on 
this  occasion,  "  did  remise,  release,  and  for  ever  quitclaim, 
unto  the  said  Peter  Allaire,  and  to  his  heirs  and  assigns, 
all  her  right,  title,  interest,  claim,  dower,  or  title  of  dower 
whatsoever,  which  she  the  said  Mary  Palmer  now  has, 
may,  might,  should,  or  of  right  ought  to  have,  or  claim 
of,  in,  or  out  of  all  and  every,  the  messuage,  lands,  tene- 
ments, and  hereditaments,  goods  and  chattels,  which  were 
belonging  to  the  said  Benjamin  Palmer,  the  younger,  her 
late  husband,  which  were  devised  to  him,  by  the  last  will 
and  testament  of  Benjamin  Palmer,  the  elder,  and  Mary 
Palmer,  deceased,  excepting  the  sum  of  eighty  pounds," 
before  mentioned,  left  as  aforesaid,  to  Thomas  Palmer, 
with  remainder  to  Mary,  his  mother,  "  and  all  manner  of 
action  and  actions,  writ  or  *  writs  of  dower,    whatsoever,  *  185 

so  as  neither  she  the  said  Mary  Palmer,  nor  any  other  per- 
son for  her,  or  in  her  name,  any  manner  of  dower,  or  writ 
of  action  of  dower,  or  any  right  or  title  of  dower,  of,  or 
in  the  said  messuage,  lands,  tenements  and  hereditaments, 
or  of,  or  in  any  part  or  parcel  thereof,  (except  as  before  ex- 
cepted,) at  any  time  hereafter,  shall,  or  may  have  claim, 
or  prosecute  against  the  said  Peter  Allaire,  his  heirs  or  as- 
signs. 

The  said  bill  further  stated,  that  he,  Peter  Allaire,  had 
executed  a  bond  and  mortgage  to  the  said  Mary  Palmer, 
conditioned  for  the  payment  of  three  hundred  and  tw« 
pounds,  part  of  the  said  purchase-money ;  that  the  testa- 
tor's debts  were  estimated  at  two  hundred .  pounds,  to  dis- 
charge which,  and  pay  Mary  Palmer  the  overplus,  (if  any,) 


186 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.   1805. 


*  187 


and  also  for  the  securing  the  said  sum  of  eighty  pounds,  and 
the  interest  thereof,  he  the  said  Peter  Allaire  delivered 
another  o'  ligation  to  the  said  Mary  ;  that  she  gave  him  a 
bond  to  refund,  if  the  debts  should  prove  greater  than  what 
they  were  estimated  at,  and  together  with  the  appellant, 
the  said  Benjamin  Griffen,  promised  to  execute  a  deed  in 
trust  for  him,  of  the  testator's  property. 

That  he  the  said  Peter  Allaire  had  advertised   for   the 
creditors  of  the  testator  to  bring  in  their  accounts  to  him, 
and  had  paid  several,  particularly  to  the  appellant  Benja- 
min Grifen,  several  accounts,  which  had  been  be  lore  paid  by 
the  said  Benjamin  Griffin,  and  that  the  price  of  six  hundred 
pounds  was  the  full  value  of  the  said  real  and  personal  estate. 
*The  bill  further   stated,  in  substance,  that  the   appel- 
lants, Isaac  Snijfin  and  Peter  Jay  Munro,  having  notice  of 
the  premises,  had  procured  a  subsequent  conveyance  for 
the  said  real  and  personal  estate  from  the  said  Benjamin 
Griffen  and  Mary  Palmer,  who  qualified  herself  as  an  ex- 
ecutrix for  that  purpose.     That  the  appellants,  Peter  Jay 
Munro  and  Isaac  Snijfin,  or  one  of  them,  indemnified  her 
for  such  conveyance.     That  the  said  Peter  Jay  Munro  had 
possessed  himself  of  a  great  part  of  the  real  and  personal 
estate  of  the  testator,  and  refused  to  account  for  the  per- 
sonal estate  to  the  said  Peter  Allaire,  or  to  let  him  into  the 
possession  of  the  real  estate.     The  bill,  therefore,  prayed, 
that  the  said  Peter  Jay  Munro  might  account  for  such  part 
of  the  personal  estate  of  the  said  Benjamin  Palmer  as  had 
come  to  his  hands  ;  for  a  specific  performance  of  the  agree- 
ment made  between  the  said  Peter  Allaire  and  Mary  Pal- 
mer ;  to  receive  a  more  perfect  assurance  and   conveyance 
of  the  estate  of  the  said  Benjamin  Palmer,  deceased,  and 
to  receive  to  such  other  and  further  relief  as  the  nature  of 
his  case  might  require. 

To  this  bill  the  appellants,  Isaac  Snijfin  and  Mary  Pal- 
mer, filed  their  general  demurrer  for  want  of  equity  as 
against  them.  The  appellant,  Benjamin  Griffen,  also  de- 
murred for  the  same  reason,  to  so  much  as  respected  the 


STATE  OF  NEW-YORK. 


187 


veal  estate  of  the  testator,  or  demanded  any  relief  against 
him  relating  thereto;  answering,  nevertheless,  that  he 
never  had  agreed  to  convey  the  said  real  estate  to  the  said 
Peter  Allaire;  and  that  the  said  Peter  Allaire  never  paid 
any  of  the  testator's  debts,  except  some  trifles,  amounting 
to  about  2/.  6s.  which  were  discharged  with  *money 
received  by  the  said  Peter  Allaire,  from  the  sale  of  a  part 
of  the  personal  estate  of  the  testator.  The  appellant,  Peter 
Jay  Munro,  also  demurred  for  the  same  cause,  to  so  much 
of  the  said  bill  as  respected  the  said  real  estate ;  but 
answered,  that  he  had  never  possessed  himself  of  any  part 
of  the  personal  estate  of  the  testator,  nor  taken  any  con- 
veyance or  assignment  of  the  same. 

Upon  these  several  demurreis  the  cause  came  on  to  be. 
argued  in  the  said  court  of  chancery,  when  his  honour  the 
Chancellor  was  pleased  to  direct  and  order,  that  the  demur- 
rers should  be  overruled,  and  that  the  appellants  should  an- 
swer fully  to  the  said  bill ;  from  which  orders  and  directions 
the  appellants  severally  appealed. 

1st.  Because  the  said  Peter  Allaire  as  a  trustee  and  ex- 
ecutor, could  not  be  a  purchaser  under  the  testator's  will, 
of  the  said  real  or  personal  estate,  nor  was  the  said  Mary 
Palmer,  at  the  time  of  making  the  said  pretended  sale,  in 
capacity  to  do  any  act  which  could  affect  the  real  estate  of 
the  said  testator. 

2d.  Because  the  other  executors  named  in  the  said  will, 
could  never  give  a  valid  conveyance  for  the  same  to  the 
said  Peter  Allaire. 

3d.  Because  the  testator's  creditors  did  not  appear  to 
have  been  satisfied,  nor  his  son's  annuity  paid  ;  but  on  the 
contrary,  according  to  the  said  Peter  Ailaireys  own  show- 
ing, neither  the  one  nor  the  other  had  been  done  ;  neither 
had  any  of  the  said  creditors,  nor  had  the  said  legatee  con- 
sented to  the  said  pretended  sale  to  the  said  Peter  Allaire, 
to  or  look  to  him,  alone,  for  their  demands. 

4th.  Because  the  heir  of  the  said  testator  was  not  a  party 
of  the  said  bill. 


ALBANY, 

Fell.  JS05. 


Allaire. 


*  188 


X  X 


189* 


ALBANY, 

Feb.  Ib05. 


Allaire. 


*  190 


CASES  IN  ERROR  IN  THE 

*5th.  Because,  as  to  the  testator's  personal  estate,  there 
was  no  charge  that  the  same  had  come  to  the  hands  of  the 
said  Benjamin  Griffen,  Mary  Palmer,  or  Isaac  Sniffin,  nor 
was  any  account  thereof  requested  from  any  of  them.  And 
the  said  Peter  Jay  Munro  had,  by  answer,  fully  cleared 
himself  of  any  concern  with  the  same,  even  if  the  said 
Peter  Allaire  had  a  right  to  command  an  account  of  it. 

6th.  Because,  as  the  said  Benjamin  Griffen  denied  any 
promise  to  the  said  Peter  Allaire  for  that  purpose,  he  could 
not  be  bound  to  execute  a  conveyance  to  him. 

7th.  Because,  as  the  bill  was  framed,  the  scope  thereof 
against  all  the  defendants  therein,  was  a  specific  perform- 
ance and  confirmation  of  the  said  Peter  Allaire's  title,  which 
the  appellants  could  not  give,  and  he  had  no  right  to  de- 
mand. And  the  general  prayer  of  relief  at  the  conclusion 
of  the  bill,  could  not  operate  so  as  to  depart  from  the  ge- 
neral purview  of  the  statement  of  his  case. 

The  respondent  referred  himself  to  the  case  made  by  the 
appellants,  and  the  pleadings  filed  in  the  court  of  chancery, 
and  humbly  insisted,  that  the  orders  and  directions  appeal- 
ed from  should  be  affirmed  for  the  following  reasons  : 

1st.  Because  the  said  Benjamin  Palmer  having,  by  his 
said  will,  given  only  a  naked  authority  to  his  executors  to 
sell  his  real  and  personal  estates,  in  order  to  pay  all  his  just 
debts  and  funeral  expenses,  and  a  legacy  to  his  son  Thomas, 
Palmer,  and  having  bequeathed  the  residue  of  his  estate  to 
the  said  Mary  Palmer,  there  was  no  necessity  for  the 
executors  to  *sell  the  real  estate  at  all ;  provided,  the  said 
debts  and  legacy  were  paid. 

2d.  Because  Mary  Palmer,  being  the  residuary  devisee 
and  legatee,  could  sell  her  interest  under  the  will,  to  the 
said  Peter  Allaire,  or  to  any  other  person. 

3d.  Because  the  said  Peter  Allaire  would  not  be  con- 
sidered as  a  trustee  for  the  said  Mary  Palmer,  until  a  sale 
by  him,  and  the  executors  of  the  said  real  estate,  and  even 
then,  he  might  take  from  her  a  release  of  her  interest  to' 
the  property  which  had  or  might  come  to  his  hands. 


Allaire. 


STATE  OF  NEW- YORK.  190 

4th.  Because  it  is  not  necessary  that  the  other  executors      A1.KAW, 
in  the  will  should  join  in  the  conveyance  with  the  said  Mary 
Palmer  to  the   said   Peter  Allaire,  the    bill   only    praying  a 
specific  performance  of  her  agreement  with  the  said  Peter 
Allaire. 

5th.  Because  the  said  Mary  Palmer  was  guilty  of  a 
fraud,  in  selling  her  interest  in  the  estate,  to  Isaac  Snifftn, 
perhaps,  too,  for  a  smaller  sum,  after  she  had  already 
agreed  to  sell  it  to  the  said  Peter  Allaire,  who  had  paid  her 
for  the  same. 

6th.  Because  it  appears  that  the  said  Peter  Allaire  had  re- 
tained in  his  hands  moneys  sufficient  to  pay  the  creditors 
and  the  legacy  of  the  testator's  son  ;  and  the  decree  below 
might  have  been  so  framed,  if  necessary,  as  to  compel  him 
to  satisfy  those  demands  before  the  said  Mary  Palmer  had 
perfected  her  title. 

7th.  Because  the  consent  of  the  creditors  and  the  testa- 
tor's son  was  not  necessary  to  the  sale  of  Mary  Palmer's 
interest  in  the  estate,  inasmuch  as  they  could  not  be  in- 
jured by  it,  the  said  debts  and  legacy  *remaining  a  charge  #  191 
upon  the  land,  notwithstanding  such  alienation  by  the  said 
Mary  Palmer. 

8th.  Because  the.  whole  residuary  estate,  being  given  to 
the  said  Mary  Palmer,  it  was  unnecessary  to  make  the  heir 
at  law  a  party.  If  the  bill  was  defective  in  that  respect,  it 
might  be  cause  for  a  special,  not  a  general  demurrer;  be- 
sides, the  Chancellor  could,  in  any  subsequent  stage  of  the 
cause,  have  ordered  the  heir  at  law,  if  he  had  judged  it 
necessary,  to  be  brought  before  the  court. 

9th.  Because,  there  being  a  general  prayer  for  relisf,  any 
remedy  suited  to  the  respondent's  case  might  have  been 
afforded.  For  instance,  the  court  might  have  ordered  the 
bond  and  mortgage  given  by  Allaire  to  Mary  Palmer  to 
be  delivered  up  to  be  cancelled,  or  it  might  have  ordered 
the  said  Peter  Jay  Munro  to  join  the  said  Mary  in  perfect- 
ing the  respondent's  title,  or  it  might  have  ordered  the 
deeds  to  the  said  Isaac  Snijfin  and  Peter  Jay  Munrs,  to  be 


191 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb   1805. 


Allaire. 


cancelled,  and  awarded,  if  necessary,  a  perpetual   injunc- 
tion to  the  executors  against  selling. 

10;h.  Because,  if  the  said  bill  does  not  charge  the  said 
Benjamin  Griffien,  Mary  Palmer,  or  Isaac  Sniffin,  with  re- 
ceiving any  of  the  testator's  personal  estate,  such  allegation 
was  unnecessary,  or  if  the  bill  be  defective  here,  it  was 
sufficiently  complete  in  other  respects,  not  to  be  dismissed 
on  a  general  demurrer. 


Benson,  J.  This  is  an  appeal  from  the  orders  of  the 
court  of  chancery,  overruling  the  several  demurrers  of  the 
appellants  to  the  respondent's  bill. 

The  intent  of  the  respondent's  bill  in  the  court  of  chan- 

*  192  eery  is,  that  he  may  have  a  specific  performance  of  *hi6 

agreement  with  the  appellant,  Mary  Palmer,  whereby  she 
bound  herself  to  convey  to  him,  by  good  and  sufficient  con- 
veyances in  the  law,  all  her  estate,  right,  title  and  interest 
whatever,  to  the  estate  of  her  late  husband,  and  that  he 
may  receive  a  more  perfect  assurance  and  conveyance  of 
the  said  estate. 

To  that  end,  the  other  appellants  are  also  brought  into 
court,  either  as  confederates  with  her,  or  as  subsequent 
purchasers  from  her  with  notice.  Several  questions  have 
been  raised  and  argued  by  the  counsel  on  both  sides.  An 
opinion  by  the  court  on  each  of  these  questions  would  be 

•  *  unnecessary.     It  is,  therefore,  to    be  foreborne,  it  being 

sufficient  for  a  decision  against  the  respondent,  that  he  had, 
at  any  time,  as  a  trustee,  a  power  over  the  property  so 
agreed  to  be  conveyed,  and  whether  this  property  existed 
in  the  shape,  either  of  money  or  of  land,  makes  no  dif- 
ference. The  demurrers  by  the  appellants,  therefore,  were 
well  taken,  it  being  a  principle  that  a  trustee  can  never  be  a 
purchaser  i  and,  I  assume  it  as  not  requiring  proof,  that 
this  principle  must  be  admitted,  not  only  as  established  by 
adjudication,  but  also  as  founded  in  indispensable  necessi- 
ty, to  prevent  that  great  inlet  of  fraud,  and  those  dangerous 
consequences  which  would  ensue,  if  trustees  might  them' 


STATE  OF  NEW-YORK.  192 

selves  become  purchasers,  or  if  they  were  not,  in  every  re-  ALBANY, 

i      •                    U  ieb.  IS05. 

spect,  kept  within   compass.     Although  it  may,  however,  ^^^^^ 

seem  hard,  that  the  trustee  should  be  the  only  person  of  all  Munro  and 

_        ,                    i     •  other* 

mankind  who  may  not  purchase  ;  yet,  for  the  very  obvious 
consequences,  it  is  proper  the  rule  should  be  strictly  pursu 


ed,  and  not  in  the  least  relaxed.     *Therefore,  far  from  *  193 

discerning  the  respondent's  case  as  an  exception,  supposing 
the  rule  to  be  only  general  and  not  universal,  I  would  re- 
mark, that  notwithstanding    the   averment  in  the  bill,  that 
Mary  Palmer  fully  understood  the  agreement  and  convej> 
ance,  and,  independent  of  the  circumstance   that  she   was 
not  able  to  read  or  write,  whoever  will  merely  look  at  the 
conveyance,  which  is  set  forth  at  large  in  the  bill,  will  in- 
stantly perceive  that  the  parties,  or  other  persons  who  are 
named  in  the  bill,  as  friends  or  agents  in  the  transaction, 
did  not  know  what  she  had  by  the  agreement,  agreed  to 
convey  ;  whether  an  estate  in  the  land,  or  her  eventual  in- 
terest in  the  money  to  arise  by  the  sale  of  the  land ;  or  in 
what  manner,  or  to  what  extent  these  acts  were  susceptible 
of  effect,  or  even  whether  they  were  not  altogether  nugato- 
ry.    The  conduct  of  the  parties,  and  every  other  person 
having  any  other  agency  in  a  bargain  so  made,  without  due 
knowledge  or  advertisement,  is,  to  say  the  least  of  it,  in- 
discreet, irregular,  unfit,  and  certainly  to  be  discountenan- 
ced.    I  am,  therefore,  satisfied  of  the  justness  of  this  prin- 
ciple, that  a  court  of  equity  ought  never  to  aid  a  party  to 
have   the  bargain   enforced  or  perfected,  with  intent  that 
any  profit  or   advantage  should   be  taken  by  it ;  the  inter- 
position of  the  court,  if  any,  should  be  only  to  avoid  or  re- 
lieve against  a  loss  or  damage. 

The  principle,  as  quoted  from  the  adjudications,  is  in 
terms  without  qualification  or  exception.  A  trustee  can 
never  be  a  purchaser,  &c.  and  without  some  explanation,  I 
may,  possibly,  be  considered  as  understanding  it  in  its  ap- 
parently absolute  sense.  I  will,  therefore,  briefly  mention 
that  the  cases  where  the  suit  is  against  the  trustee  to  set 
aside  a  purchase,  *he  having  procured  the  requisite  formal  *  194 


194  CASES  IN  ERROR  IN  THE 

ALBANY,  legal  title,  are  to  be  distinguished  from  those  where  the 
Feb.  1805.       gu-t  js  ^  fcm  to  e{reCtuate  a  purchase,  either  by  having  the 

Munro  and  thing  purchased,  decreed  to  him  specifically,  or  by  having 
<>lyeis  the  means  decreed  to  him,  whereby  he  may  recover  at  law. 
That  in  the  latter  case,  it  appears  to  me,  that  the  rule  is  to 
apply  as  unlimitedly  as  it  is  expressed;  but  that  in  the 
former  case,  a  court  of  equity  will  not  always  interfere  as 
of  course  ;  for,  if  the  cestui  que  trusts  will  agree  to  allow 
the  purchase,  it  may  be  allowed  without  fear  from  the 
precedent ;  and  that  it  is  not,  in  every  instance,  indispensa- 
ble that  all  the  cestui  que  trusts  should  agree  to  waive  the 
implied  fraud  ;  it  may  be  sufficient  for  a  majority,  or  such 
other  number  or  proportion  of  them  to  agree,  as  that,  ac- 
'    -  cording  to  the   circumstances  of  the   case,  it  may  be  pre- 

sumed there  was  no  fraud  in  fact.  It  only  remains  to  be 
noticed,  that  if  the  agreement  and  conveyance  are  to  be 
without  effect,  Mary  Palmer  ought  not  to  retain  the  bond 
and  mortgage  against  the  respondent.  She  is,  neverthe- 
less, entitled  to  hold  them  until  he  shall  make  her  an  offer 
to  relinquish  the  agreement,  and  to  deliver  up  the  convey- 
ance he  now  holds  against  her  to  be  cancelled.  It  is  not 
possible  for  the  respondent  to  allege  an  offer  to  Uiat  pur- 
pose, and  to  conform  the  prayer  of  his  bill  and  his  petition 
to  it,  in  consequence  of  any  answer  which  the  appellants 
could  be  compelled  to  make  to  the  bill,  and  it  is  a  rule  that 
every  decree  must  be  according  to  the  form  of  the  petition ; 
so  that  if  the  respondent  is  to  be  relieved  against  the  bond 
and  mortgage,  he  must  proceed  de  novo,  and  as  he  shall  be 

advised. 

My  opinion  is,    that  the  order  appealed  from  be   re- 
versed. 

+  mh  March,       *Decree.     Whereupon,!  the  court  thereupon  do  order, 

mQ'  *  adjudge  and  decree,  that  the  orders  therein  complained  of 

be  reversed,  and  that   the  demurrers  of  the  appellants  to 

the  respondent's  bill  stand  allowed.     That  the  respondent 

pay  to  the  appellants  their  costs  in  respect  to  the  said  ap- 

4 


STATE  OF  NEW-YORK. 

peal ;  that  the  respondent's  bill,  as  to  the  appellants,  Isaac 
Sniffin  and  Mary  Palmer,  the  younger,  be  dismissed  with 
costs  ;  that  the  respondent  pay  to  the  appellants,  Peter  Jay 
Munro  and  Benjamin  Gnffen,  their  costs  in  respect  of  their 
demurrers  ;  and  that  the  court  of  chancery  give  all  neces- 
sary directions  for  carrying  this  judgment  into  execution. 

And  it  is  further  ordered,  that  in  respect  of  such  matter 
in  the  respondent's  bill,  to  which  the  appellants,  Peter  Jay 
Munro  and  Benjamin  Griffen,  have  answered,  the  cause  be 
remitted  to  the  court  of  chancery,  there  to  be  proceeded 
in  as  between  the  respondent  and  the  said  Peter  Jay  Munro 
and  Benjamin  Grifen,  as  shall  be  just. 


195 

ALBANY, 

Feb.  1805. 


Allaire. 


Judgment  of  reversal. 


(Supreme  Court,  1796.) 


Lewis  against  Burr. 
THIS  was  an  action  of  assumpsit,   determined  by  the  x^  4th  „f  JiJ;f 

is  a  public  hoh- 
SUpreme    COUrt.  »lav,   a    note  or 

The  suit  was  by  the  plaintiff  as  endorsee,  against  the  de-  b^ti*r*** 
fendant  as  endorsor  of  a  promissory  note,  made  by  Roger  ^J^JB 
Enos  to  him,  dated  the  first  of  June,  one  thousand  seven  of  the  r^onth. 
hundred  and  ninety-five,  for  three  thousand  five  hundred 
dollars,    payable  thirty  days  after   date.      Plea,    the  ge- 
neral issue. 

*'i  he  special  verdict  finding  the  note  and  the  endorse- 
ment of  it  by  the  defendant  to  the  plaintiff,  and  then  the 
following  facts,  was  as  follows  :  *  that  on  the  third  day  of 
July,  in  the  year  aforesaid,  the  said  three  thousand  five 
hundred  dollars,  in  the  said  note  mentioned,  or  any  part 
thereof,  being  no  ways  paid,  the  said  Francis  Lexvis,  by  his 
agent,  Solomon  M.  Cohen,  made  diligent  inquiry  and  search 
for  the   said  Roger  Ems,  in  the  said  city   and  county    of 


*  196 


196  CASES  IN  ERROR  IN  THE 

ALBANY,  New-York,  and  especially  at  his  usual  place  of  abode  in  the 
*^'  ^L,  said  city,  to  the  intent  to  request  him  to  pay  to  the  said 
Lewis  Francis  Lewis,  the  said  three  thousand  five  hundred  dol- 

V. 

Burr.  lars,  in  the  said  note  contained,  according  to  the  tenor  or 

the  same,  but  the  said  Roger  Enos  was  not  then  to  be  found, 
being  absent  from  the  said  city  and  county,  in  parts  to  the 
jurors  unknown  ;  that  the  said  Roger  Enos  continued  absent 
from  the  said  city  and  county  thenceforth,  until  after  the 
fourth  day  of  July,  in  the  year  aforesaid ;  that  the  said 
Francis  Lewis,  not  finding  the  said  Roger  Enos,  to  make 
the  said  request,  did,  on  the  said  third  day  of  July,  in  the 
year  aforesaid,  by  his  agent  aforesaid,  deliver  to  the  said 
Aaron  Burr,  a  paper  writing,  subscribed  with  the  proper 
hand-writing  of  his  said  agent,  in  the  words  and  figures 
following,  to  wit : 

"New-York,  3d  July,  1795. 

"  SIR — As  General  Enos  is  not  in  town,  and  his  note 
with  your  endorsement  for  3,500  dollars,  is  payable  to- 
morrow, the  4th  instant,  the  holder  desired  me  to  give 
you  this  notice,  that  he  looks  to  you  for  payment  of  the 
same  ;  and  I  undertake  this  to  prevent  a  protest ;  General 
Enos  is  expected  daily,  when  he  will  have  cash  sufficient  to 
*  19y  discharge  the  same,  as  I  *am  credibly  informed ;  1  hope 

my  conduct  in  this  business  will  meet  with  your  approba- 
tion ;  which  will  be  very  pleasing  to 
Sir, 

Your  most  obedient  servant, 

Solomon  Myers  Cohen." 

"And  the  jurors  aforesaid  upon  their  oath  aforesaid, 
further  say,  that  the  4th  day  of  July  in  each  year,  is  the 
anniversary  day  of  the  declaration  of  the  independence  of 
these  United  States  of  America,  and  for  that  reason  is  in 
practice,  though  not  by  law,  generally  observed  by  the  citi- 
zens of  this  state  of  New-York,  as  a  public  festival ;  and, 
also,  .hat  some  time  in  the  month  of  May,  in  the  year  of 
our  lord  1784,  upon  the  institution  of  the  bank  of  New- 
York^  which  does  no  business  on  any  fourth  day   of  July, 


STATE  OF  NEW- YORK.  197 

it  became,  and  since  continually  has  been,  and  still  is,  a  gene-      Albany, 

ral   practice  and  usage  in  the   said  city  of  New-York,  for 

the  holder  of  a  promissory  note  made  by  one  person  and 

endorsed  by  another,  if  the  same  become  payable,  allowing 

three  days  of  grace,  on  the  4th  day  of  July,  in  any   year,  — 

to  demand  payment  from  the  maker  of  such  note,   of   the 

sum  therein  mentioned,  on  the  3d  day  of  the  same   July, 

and  if  he  refuse  to  pay  the  same,  or  if  he  cannot  be  found, 

to  the  end  that  payment  may  be  demanded  of  him,  and  if 

the  said  holder  shall  be  minded  to  look  to  the  said  endor- 

sor  for  payment  of  the  said  note  ;  then,  forthwith,  that  is 

to  say,  on  the  same  3d  day  of  July,  to  give  notice  to  the 

said  endorsor,  of  such  refusal  to  pay  the   sum  mentioned, 

in  the   said   note,    or  that  the  maker  thereof  cannot  be 

found,  to  the  end  that  payment  may  be  demanded  of  him, 

and  also,  that  it  is  the  intention  of  the  said  holder  to  look 

to  the  said  endorsor  *for  the  payment  of  the  said  sum.  But  *  198 

whether,"  &c. 

Per  Curiam,  by  Benson,  J.  By  our  statute  of  the  27th 
March,  1794,  "  promissory  notes  are  made  assignable  and 
endorsable  over;  and  an  action  may  be  maintained  on 
them,  as  in  cases  of  inland  bills  of  exchange." 

The  reference  to  bills  of  exchange    is  contained  in  the 
English  statute,  of  the  3d  and  4th  Anne;  but  having  been 
omitted  in  the  colonial  statute  of  1773,  it  was  also  omitted 
in  the  statute  of  1788,  in  our  revised  code  ;  the    omission, 
therefore,  in  the  statute  of  1788,  can  be   accounted   for. 
But  whether  it  was  in  the  first  instance    designed  or  acci- 
dental in  the  statute  of  1773,  cannot   be  ascertained.     It, 
however,  occasioned  the  statute  of  1794,  which,  it  is  known, 
was  intended,  and  has  been  received  and  practised  on  in  the 
community,  as  a  provision,  in  addition  or   amendment  of 
the  statute  of  1788,  to  give  days  of  grace    to   promissory 
notes  ;  hence  it  is,  that  they  are  now   considered   as  enti- 
tled to  this  incident,  by   law.     The  laxv,    however,    does 
not  create  the  incident ;  it  existed  before,  as  appertaining  to 
y  v 


19*  CASES  IN  ERROR  IN  THE 

ALBANY,  bills  of  exchange,  and  the  law  can  only  be  adjudged  as 
constructively  extending  it  to  promissory  notes  :  it  however 
existed  by  force  of  custom  only ;  to  know,  therefore,  what 
the  incident  is,  we  still  resort  to  custom. 
— — — — —  Days  of  grace,  as  a  general  incident  to  bills  of  exchange, 
are  by  almost  universal  custom  ;  the  number  of  days  being 
different  in  different  places,  according  to  their  respective 
laws  and  customs.  In  England  the  number  is  three,  and 
wholly  by  custom. 

There,  also,  if  the  last  of  the  three  days  happens  to  be 
*  199  a  ^ay  on  wh*cri  either  the  law  or  custom  hath   ^established 

"  that  no  money  is  to  be  paid,"  then  the  number  is  to  be 
restricted  to  two.  This  is  also  not  only  wholly  by  custom, 
but  is  repugnant  to  the  analogy  of  a  rule  of  municipal 
law,  by  which,  if  an  act  is  to  be  done  on  a  day,  which 
happens  to  be  a  Sunday,  or  any  other  day  on  which  it  could 
not  be  done,  without  transgressing  the  law,  that  then,  in- 
stead of  the  day  before,  it  must  be  done  on  the  day  after ; 
so  that  the  regulation  of  restricting  the  period  of  respite  in 
favour  of  the  creditor,  preferably  to  enlarging  it  in  favour 
of  the  debtor,  if  it  had  been  questioned  in  its  commence- 
ment, I  should  conceive,  ought  to  have  been  arrested  by 
the  courts  of  justice,  not  as  inconvenient  or  injurious  in 
itself,  but  as  repugnant  to  the  rule  of  law  in  analogous 
cases ;  it  having,  however,  been  sanctioned  by  custom,  it 
was,  therefore,  judicially  "  approved  ;"  comuetudo  altera 
'ex. 

I  assume  it,  that  the  custom,  as  it  existed  in  England  at 
the  time  of  our  revolution,  was  deemed,  in  fact,  to  be  the 
custom  among  us,  and  entitled  to  prevail.  In  addition  to 
the  custom,  as  it  then  existed,  the  special  verdict  finds  a 
continued  custom  from  the  month  of  May,  1784,  hitherto 
for  another  day  besides  Sunday,  &c.  when  the  restriction 
of  the  number  of  days  of  grace  is  to  take  place,  namely, 
the  anniversary  of  our  independence.  The  question,  there- 
tore,  between  the  parties  is,  whether  the  custom  is  not,  in 
this  particular,  also  equally  entitled  to   prevail  ?  with   re- 


STATE  OF  NEW-YORK. 

spect  to  which,  I  would  briefly  state  that,  whenever  a  prac-  ALBANY, 
tice,  usage  or  custom  hath  obtained,  for  a  length  of  time,  ^^ryjt 
so  as  that  it  may  be  presumed  to  be  generally  known  ;  that  Lewis. 

then,  all  contracts  to  which  it  may  be  applicable,  shall  be  Burr, 

interpreted  *and  governed    by  it.     This   principle    is   not  #~20O 

new :  we  practise  on  it  daily.  Where  the  contract  is  not 
special  or  explicit,  so  as  to  exclude  construction,  the  in- 
quiry always  is,  what  is  usual  ?  Lest  I  may  be  misunder- 
stood, I  would  mention,  that  I  mean  such  practices,  usages, 
or  customs  only,  as  may  consist  with  law ;  that  I  decide 
only  on  their  force  or   authority,  admitting   the   object  of 

them  to  be  lawful. 

I  am  of  opinion,  that  the  note  in  question  is  to  be  ad- 
judged as  having  fallen  due  on  the  3d  day  of  July,  the 
second  day  of  grace,  and,  consequently,  that  the  plaintiff 
is  entitled  to  recover. 


(Supreme  Court.) 
Cortelyou  against  Lansing,  Administrator  of  Antill. 

THIS  was  an  action  of  assumpsit,  under  the  following  0n  the  deposit 
circumstances.  On  the  29th  of  April,  1786,  Antill  deposit-  °fhe*e  J^rf 
ed  with  the  defendant  a  depreciation  note,  taking  from  gjygjjg 
him  a  receipt  in  these  words  ;  «  Received  of  E.  Antill,  as  ^J^** 
a  deposit,  to  remain  in  my  hands,  his  depreciation  note,  P^i^™- 
dated  1st  January,  1781,  No.  26.  said  to  be  for  the  value  pawnor;  if  the 

"  J         t    9  ,   ,.  ,    pawnee  sell  the 

of  2  629  dollars  and  48  cents,  which  note  is  to  be  delivered  ,,|e,|ge  before 
up  upon  the  payment  of  600  dollars,  with  lawful  interest,  gjj^  yj0^ 
lent  and  advanced  bv  me  to  the  said  E.  A.  on  the  24th  of  jj£  ^^  ^  ^ 
September,  1783,  or  upon  giving  such  other  security  as  gedfj,  ^  th. 
will  be  acceptable  for  the  whole,  or  such  part  as  may  be  ffi*^£*« 
found  due  upon  a  future  settlement.  ,12^*3 

On  the  1st  of  January,  1785,  the   defendant   received  te|1,w  r  of  the  ba. 
on  account  of  the  600  dollars,  125  dollars,  and  on  the  9th  »*»«*••• 


200 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


Cortelyou 
v. 

Lansing. 


*  201 


October,  1788,  he  sold  the  certificate  for  625  dollars 
being  the  highest  market  price  that  could  *be  obtained  for 
the  same,  leaving  a  balance  of  39  dollars  and  62  cents  due 
to  him  on  that  day. 

In  1791  or  1792  Antill  died,  and  administration  being 
granted  to  the  plaintiff,  he,  in  1 799,  went  to  the  house  of 
the  defendant  for  the  purpose  of  demanding  the  certificate, 
but  in  consequence  of  the  defendant's  incapacity  to  attend 
to  business  from  mental  derangement,  he  could  not  be  seen. 
There  was  no  evidence  that  the  plaintiff  had  any  money  at 
the  time  to  tender  to  the  defendant. 

At  the  trial,  the  court  charged  the  jury  on  this  evidence, 
that  the  demand  of  damages  was  a  question  of  law,  but 
that  the  plaintiff  was  entitled  to  recover  ;  and  that  the  only 
rule  of  damage  was  the  value  of  the  certificate  in  1 799,  to- 
gether with  interest  from  that  time.  The  jury  found  ac- 
cordingly, subject  to  the  opinion  of  the  court  on  the  above 
case. 


*  202 


Per  Curiam,  delivered  by  Kent,  J.  The  points  relied 
on  by  the  defendant  are, 

1.  That  he  had  a  right  to  dispose  of  the  certificate. 

2.  That  the  pledge  had  become  absolute  by  the  death  of 
the  pawnor. 

3.  That  a  tender  of  the  money  was  requisite  before 
suit. 

4.  That  the  rule  of  damages  was  subject  to  the  discretion 
of  the  jury. 

The  two  first  questions  raised  in  this  case,  respect  the 
rights  of  the  parties  over  the  depreciation  note  thus  depo- 
sited with  the  defendant ;  the  one  claiming  a  right  to  re- 
deem, and  the  other  to  sell  it ;  each  reciprocally  denying 
the  other's  pretensions.  But  the  -*books  involve  the  in- 
quirer in  considerable  doubt  and  difficulty  in  the  discussion 
of  these  questions,  nor  do  the  English  courts  appear  to 
have  defined  and  settled  them  with  their  usual  accuracy  and 
precision. 


STATE  OF  NEW-YORK.  202 

The  note  in  question  came  under  the  strict  definition  of     ALBANY, 
a  pledge.t     It  was  delivered  to  the  defendant  with  a  right    s^^^J 
to  detain  as  a  security  for  his  debt,  but  the  legal  property       Corteiyou 
did  not  pass,  as  it  does  in  the  case  of  a  mortgage,  with  a        Lansing. 
condition  of  a-  defeasance.     The  general  ownership  remain-  Wig  ub  18  ^ 
ed  with  the  intestate,  and  only  a  special  property  passed  to  r. §9.  lifeM*. 
the  defendant.     It  is,  therefore,  to  be  distinguished  from  Jfr.KPtojg, 
a  mortgage  of  goods,  for  that  is  an  absolute  pledge,  to  be-  **^*£* 
come  an  absolute  interest  if  not  redeemed  at  a  fixed  time.  Brtctm,  99.  b. 
Besides,  delivery  is  essential  to  a  pledge  ;  but  a  mortgage 
of  goods  is,  in  certain  cases,  valid  without  delivery. 

The  mortgage  and  the  pledge,  or  pawn  of  goods  seem, 
however,  generally  to  have  been  confounded  in  the  books, 
and  it  was  not  until  lately  that  this  just  discrimination  has 
been  well  attended  to  and  explained. 

I  find  no  difficulty  in  saying  that  the  defendant  had  no 
authority  to  sell  the  pledge  at  the  time  he  sold  it.  It  was, 
at  that  time,  an  illegal  conversion  of  the  intestate's  proper- 
ty. The  pledge  was  delivered  without  any  specified  time 
of  payment  or  redemption.  It  was  to  remain  in  the  de- 
fendant's hands  to  be  delivered  upon  payment.  The  cases 
relied  on  by  the  defendant's  counsel  admit  that,  in  such  a 
case,  the  pawnor  has  his  whole  life-time  to  redeem.  If 
this  be  so,  the  defendant  had  no  right  to  sell  during  the 
pawnor's  life  ;  because  the  one  right  would  be  inconsistent 
with   the   other.      The    expression,    however,    *that  the  *  203 

pawnor  has  his  life  as  a  time  to  redeem,  where  no  time  of 
redemption  is  fixed,  must  be  taken  with  this  qualification, 
that  the  defendant  does  not,  in  the  mean  time,  call  upon  him 

to  redeem." 

This  he  certainly  must  have  a  right  to  do.  The  manner 
in  which  that  call  is  to  be  made,  and,  in  case  of  the 
pawnor's  default,  the  manner  of  disposal  of  the  pledge,  are 
distinct  points  which  I  need  not  now  discuss ;  because,  in 
the  present  case,  no  call  whatever  was  made  upon  the  intes- 
tate, previous  to  the  sale  of  the  note.  There  is  no  instance 
to  be  found,  in  case  of  a  deposit  for  an  indefinite  time, 


203 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 


Cortelyou 
v. 

Lansing. 


*  204 


T  Glanville,  lib. 
10.  e.  I.  p.  59. 


*  1  JReetes,  161. 


where  the  pawnee  sold  in  the  life-time  of  the  pawnor,  and 
without  making  a  previous  demand,  that  such  sale  was  held 
good.  The  sale  by  the  defendant  was,  therefore,  clearly 
unauthorized  and  illegal. 

The  next,  and  the  more  difficult  question  is,  whether  the 
representatives  of  the  pawnor  have  a  right  to  call  upon  the 
defendant  to  restore  the  pledge  or  its  equivalent.  That 
the  intestate  had  such  a  right  is  not  to  be  disputed,  and  the 
point  is,  whether  it  be  such  a  right  of  action  as  died  with 
the  person,  or  whether,  as  in  all  other  cases  of  a  right  of 
action,  not  founded  on  a  personal  tort,  it  descended  to  the 
plaintiff.  If  the  right  of  action  did  not  descend,  this  will 
be  the  first  case,  I  apprehend,  that  ever  existed,  in  which 
the  remedy  for  the  conversion  of  one's  property  was  limited 
to  the  life-time  of  the  party  injured.  But  it  is  said  to  be 
immaterial,  what  was  the  defendant's  conduct  in  respect  to 
the  pledge,  since  where  no  time  was  fixed,  the  pawnor 
must  redeem  in  his  life-time,  and  if  he  dies  without  redeem- 
ing, the  property  in  the  pledge  becomes  absolute  in  the 
^pawnee.  This  last  proposition  has  so  much  countenance 
in  the  books,  that  to  determine  on  its  validity  it  will  be  ne- 
cessary to  bestow  a  considerable  attention  to  the  cases,  and 
if  I  am  not  greatly  mistaken,  the  result  will  show  that  it  is 
wholly  destitute  of  any  solid  foundation. 

Glanville,  the  earliest  of  our  juridical  classics,  has  treated 
the  subject  with  a  precision  not  to  be  found  in  the  authori- 
ties of  a  subsequent  period,  and  with  a  perspicuity  and 
simplicity  that  bespeak  a  writer  of  a  primitive  age.  A  loan,f 
he  observes,  is  sometimes  made  on  the  security  of  a  pledge, 
(sub  vadii  positioned)  and  the  pledge  may  consist  of  chattels, 
lands  or  rents.4:  Sometimes  possession  is  immediately 
given  of  the  pledge,  on  receipt  of  the  loan,  and  sometimes 
it  is  not.  Sometimes  the  thing  is  pledged  for  a  term,  and 
sometimes  without.  When  a  chattel  is  pledged  and  pos- 
session is  given,  and  for  a  certain  term,  the  creditor  is 
bound  to  keep  the  pledge  safely,  and  not  to  use  it  to  its 
detriment.     If  it  be  agreed  that  in  case  the  debtor  should 


STATE  OF  NEW-YORK.  204 

not  redeem  the  pledge  at  the  end  of  the  term,  the  pledge 
shall  remain   with  the  creditor  as  his  own  property,  the 
agreement  must  be    observed.     But   if  there  be  no  such       Cortdyou 
agreement,  and  there  be  a  fixed  time  of  redemption,  and        Lansing. 
the  debtor  make  delay  in  payment,  the  creditor  may  quicken  ' 

the  redemption  by  a  writ,  (of  which  he  gives  the  form,)  and 
which  requires  the  debtor  without  delay  to  redeem  (acquietet 
rem  quam  invadiavit)  the  pledge. 

On  the  return  of  the  writ,  if  the  defendant  confessed  the 
pledge,f  he  was   commanded  to  redeem   in  a   reasonable  1 1  Reeves,  i«2. 
time,  and  on  default,  the  *creditor  had  license  to  treat  the  *  205 

pledge  as  his  own.     But   if  the  pledge   was  made  without 
mention  of  any  particular  term4  the  creditor  might  (debitum  ^  lbt  K3> 
peter  e)  demand  his  debt  at  any  time  and  the  debt  being  dis- 
charged, the  creditor  was  bound  to  restore  the  pledge  with- 
out any  deterioration.  , 

This  authority  establishes  two  points. 

1st.  That  if  the  pledge  was  not  redeemed  by  the  time 
stipulated,  it  did  not  then  become  absolute  property,  in  the 
hands  of  the  pawnee,  but  the  pawnee  was  obliged  to  have 
recourse  to  the  aula  regis,  and  to  sue  out  an  original  writ, 
in  order  to  obtain  authority  to  dispose  of  the  pledge. 

2d.  That  if  the  pledge  was  for  an  indefinite  term,  the 
creditor  might,  at  any  time,  call  upon  the  debtor  to  re- 
deem by  the  same  process  of  demand.  By  what  authority 
the  judges  in  the  time  of  James  I.  advanced  a  different 
doctrine  on  this  subject,  is  not  made  to  appear.  The 
rights  of  the  parties  arising  out  of  the  case  of  a  pawn,  un- 
derwent, however,  a  considerable  discussion  in  three  seve- 
ral cases  during  that  reign. 

In  the  case  of  Mores  v.  Conhemft  7  Jac.  I.  in  C.  B.  it  t  °*e»»  A  i2S; 
was  resolved  by  the  court,  that  a  pawnee  had  a  special 
property  in  the  goods  pawned,  and  might  use  the  pawn,  so 
that  it  was  not  to  its  detriment,  and  if  he  assigned  over  the 
pawn,  the  assignee  would  be  subject  to  detinue,  if  he  de- 
tained the  pawn  after  payment  by  the  owner. 

This  decision  was  correct,  and  in  harmony  with  the  an- 


205  CASES  IN  ERROR  IN  THE 

ALBANY,  cient  laws,  as  laid  down  by  Glanville  and  Br acton. ,f  It  con- 
Feb.  1805.  jeered  a  pawn  in  its  true  light,  as  a  mere  deposit  of  a 
Corteiyou  chattel  to  be  detained  as  a  security,  *and  that  the  general 
Lansing.        property  was  still  in  the  pawnee. 

The  next  case  is  that  of  Sir  John  RatcUffe  v.  Davis,  8 


t  GianvMe,  ut  y      j    •    K    B>  ^hat  was  a  suit  in  trover,  and  the  special 

supra,  Bracton,   Jul"  *•  * 

so-  b.  verdict  stated,  that  the  plaintiff  had  pawned  a  hat-band,  set 

with  jewels,  unto  one  Whitlock,  a  goldsmith,  for   25/.  no 
day  was  set  to  redeem.     The  pawnee  on  his  death-bed,  de- 
livered the  pledge  to  the  defendant,  with  a  request  to  keep 
it  till  the  money  was  paid,  and   then  to  deliver  it  to  the 
plaintiff.     The  pawnee    then    died,  and  the  plaintiff  ten- 
dered the  debt  to  his   executor,    who  refused  to  receive 
the  money,    and  then  he   applied  to  the   defendant   and 
after    a    demand    and   refusal,    brought   his  suit.      The 
court  gave  judgment  for  the  plaintiff ;  and  of  course  decided 
all  the  points  arising  out  of  the  verdict,  which   were,  that 
the  tender  to  the  executor  was  well  made  ;  that  by  the  ten- 
der and  refusal,  the  special  property  in  the  pledge   revested 
in  the  plaintiff ;  that  the  general  property   had  been    con- 
stantly in  him  ;  that  the  death  of  the  pawnee    did  not    de- 
stroy the  right  of  redemption  ;  that  refusal  by  the  defend- 
ant after  tender  to  the  executor,  was   a   conversion,  and 
that  the  defendant  had  only  the  bare  custody  of  the  pawn. 
This  decision  was  in  every  respect  reconcilable  with  the 
ancient  law.     It   maintained   without   diminution,  all  the 
well  known  and  settled  rights  of  the  respective  parties;  and 
had  not  the  erudition  of  the  judges  (according  to  the   taste 
of  those  times)  carried  them  far  beyond  the  record   before 
them,  and  led  them  to  discuss  points,  not  relevant  to   the 
issuey  we  should,  probably,  never  have  heard  of  the  present 
question. 
*  207  *But  m  SlvinS  tneir  opinions,  one  of  the  judges   said, 

that  executors  might  redeem  a  pledge,  and  that  it  would 
be  assets  in  their  hands.  The  other  four  observed,  that  if 
time  be  limited  to  redeem,  the  death  of  either  party  pre- 
vious to  that  time,  could  not  prejudice  the  right ;  but  if  no 


STATE  OF  NEW-YORK. 


207 


time  was  limited,  the  pawnor  had  his  whole  life,  and  if  he 
died  before  he  redeemed,  the  right  was  gone,  and  his  execu- 
tors could  not  redeem.  It  were  to  be  wished  that  the  rea- 
sons of  the  judges  had  been  more  fully  reported  than  we 
find  them  in  this  case. 

In  the  case  as  reported  in  Bulstrode,  the  only  reason  sta- 
ted is,  that  it  would  be  very  mischievous  to  compel  the 
pawnee  to  keep  the  goods  thus  pawned,  for  such  an  indefi- 
nite time,  when  he  hath  paid  sufficiently  for  them.       But 
this  objection  would  have  been  found  to  have  had  no  vali- 
dity, if  they  had  only  attended  to  the  law  as  laid  down  by 
Glanville,  who  says,  as  I  have  already  stated,  that   where 
no  time  is  fixed,  the  creditor  might  quicken  his  debtor's  de- 
lay, and  demand  his    debt  at  any  time,  the    process  for 
which  he  has  given.     From  the  case  as  reported  in  Croke, 
it  is  very   questionable  whether  the  court  ever  agreed   in 
these  extrajudicial  dicta.     He  states  that  two  of  the  judges 
held,  that  redemption  could  not  be  made  after  the  death  of 
the  pawnor ;  for  he,  at  his  peril,  ought   to   redeem  in  his 
time,  as  it  is  upon  a  mortgage  ;  but   that  the   others   (and 
who  were  the  majority)  held  otherwise,  for  that   pledging 
doth  not  make  an  absolute   property   as  in   the  case  of  a 
mortgage  of  land  ;  but  it  is  a  delivery  only  until  he  pays, 
&c.     So  it  is  a  debt  to  the  one  and  a  retainer  of  the  thing 
to  the  other,  for  which  there  may  be  a  redemand  *at  any 
time  upon  the  payment  of  the  money,  as  the  pawnee   hath 
but  a  special  property  in  the  goods  to  detain  them  for  his 
security. 

In  Yeherton  and  Noy,  the  opinion  of  the  court  is,  how- 
ever, given  as  it  is  in  Bulstrode,  and  the  reason  stated  is, 
that  the  pledge  is  a  condition  personal,  and  extends  only 
to  the  person  of  him  who  pawned  it.  Supposing,  then, 
this  to  be  the  more  correct  report  of  the  case,  the  ground 
of  the  opinion  is  equally  unsound  ;  a  pledge  is  not  a  pro- 
perty created  upon  a  condition  of  defeasance  like  a  mort- 
gage. It  has  no  analogy  to  the  case  of  a  right  which  is 
absolute  to  vest,  or  to  be  defeated  on  the  happening  of  an 

z  z 


ALBANY, 

Feb.  1805. 


Cortelyou 

v. 
Lansing. 


*  208 


80S  CASES  IN  ERROR  IN  THE 

ALBANY,      event,  nor  is  it  susceptible  of  that  strict  construction,  unless 
^^v-w      it  be  so  modified  by  the  express  agreement  of  the  parties. 
€ortelyou      Least  of  all  is  it  a  condition  personal  to  be  performed  ex- 
Lansing.        clusively   by  the  pawnor.      There  is  nothing  of  this  in 
'" —  r"   the   nature    of  the  contract,  and  in  fhost  cases,  as  when 

the  time  of  payment  is  mentioned,  it  is  agreed,  that  the 
right  may  remain  perfect  in  the  representatives  of  the  pat- 
ties. 
1 1  Co.  79.  the  In  feoffments  of  land,  upon  condition  that  the  feoffee  do 
eaae.  JDy.  139.  a.  *m  act,  arid  no  time  be  limited,  there  he  hath  only  his  life- 
time ;  but  if  his  heirs  be  mentioned,  the  condition  is  not 
broken  by  his  death  ;  but  extendeth  to  his  heirs  indefinitely 
without  limitation  of  time,  and  cannot  bt  broken  except 
upon  request  made  by  the  feoffor  or  his  heirs. 

If  the  naming  of  the  heirs  would,  in  this  case,  do  away 
the  limitation  of  this  condition  to  the  person  of  the  feoffor, 
even  according  to  the  rigid  construction  that  used  to  pre- 

*  209  VJ$»  under  the  genius  of  the   feudal  *law  over  feoffments 

upon  condition,  surely  it  cannot  be  material  that  in  personal 
contracts  the  executor  should  be  named,  for  it  is  a  general 
and  well  established  principle,  that  they  are  affected  equally 
a*s  if  named. 

This  notioii  of  a  pledge,  resting  upon  the  performance 
of  a  condition,  to  revest  the  right  as  in  the  case  of  a  mort- 
gage, probably  led  to  the  decision  in  Capper  v.  Dickinson, 

*  i  Rod.   Rep.  K.  B.  13  Jae.  l.%    That  if  goods  pawned  for  a  time  limited, 

be  not  redeemed  at  the  day,  they  are  forfeited  and  may  be 
sold  at  the  will  of  the  pawnee. 

This  doctrine  is  also  held  by  Justice  Dodcleridgc,  in  his 
Office  of  Executors:  He  says  the  pawnee  may  dispose  of  it 
$  Vol.  t.  70.  81.  at  his  pleasure.^  This  last  decision  not  having  any  direct 
application  to  the  present  case,  may  be  passed  over  without 
much  notice.  It  is  contrary  to  the  contract  of  pledge, 
which  does  not  pass  any  absolute  interest,  nor  rest  on  any 
absotute  condition.  It  is,  as  we  have  seen,  repugnant  to- 
me ancient  law,  and  it  is  contradicted  by  a  late  authority. 


STATE  OF  NEW^YORK.  209 

Csmuns.f  who  is  of  himself  a  great  authority,  says,  that  if     ALBANY, 

J  ,  ,  ,         i'eb.  1806. 

a  man  pledge  goods  for  money  lent,  he  may  redeem,  tnougn     \^»^^^ 

he  does  not  come  at  the  day  ;  and  the  practice  has  since  be-      Corteiyou 
come  familiar.  ^""g- 

J3y  the  lex  commmoria%  at  Rome,  k  was  lawful  for   the  t  JJT  tit  Map^ 
creditor  and  debtor  to  agree,,  that  if  doe  debtor  did  not  pay  f^.^f^ 
at  the  day,  the  pledge  should  become  the  absolute  property  jc«*ta^jg. 
of  the  creditor.     But  a  law  of  ConstmUne,  contained  in  loas.  sec.  \7.  1 
the  CW<r,  abolished  this  as  oppressive,  and  Widi  marks  ot  n. 
indignation,  declared  that  the  memory  of  the  former  law 
ought  to  be  abolished  to  all  posterity.  Such  a  rigorous  deci- 
sion as  that  in  Roll?,  i  s  contrary  to  the  law  of  France,  of  *ffpl-  *  21  p 
land,  of  Scotland?ax4>  probably,  of  all  other  countries  which, 
have  felt  and  obeyed  the  influence  of  the  civil  law ;  and  if  it 
were  really  a  part  of  the  .English  code,  in  this  instance  also., 
we  might  say  of  these  people,  that  they  were   truly    "  toto 
d'ivisos  orbe"  by  their  laws,  as  well  as  by  their  situation. 

There  remains  only  an  extrajudicial  dictum  of  Ch.   J. 
Treby,%  and  another  of  Lord  Barwiche^  and  both  support-  *  i  Ld.  Bay 
ed  only  by  the  case  in  Bulstrode,  which  go  to  show  that   a  $?F«.  srfc 
pawn  is  not  redeemable  after  the  death  of  the  pawnor,  and 
these   are  all  the   authorities,    as  far  as  I  have  been   able 
to  discoyer,  on  which  the  whole  proposition  has  rested. 

In  the  chancery  cases  of  Tucker,  Administrator,  &cf  y, 
Wilson,  in  1714,  and  Lockwood  v.  Exver,  in  1742,  and 
Kemp  v.  Westbrook,  in  1749,  it  was  said,  that  a  pawnee  of 
stock  was  not  bound  to  bring  a  bill  of  foreclosure,  and 
might  sell  without  it.  But  in  the  two  first  cases,  the  stock 
had  been,  in  the  first  instance,  absolutely  transferred  to  the 
mortgagee  with  a  defeasance  thereto,  that  the  assignment 
should  be  void,  or  the  stock  retransferred  on  payment  at 
the  day.  They  were  cases,  therefore,  not  of  a  pledge,  but 
of  a  mortgage  of  goods,  and  although  it  is  no  where  sta- 
ted in  what  manner  the  mortgagee  is  to  sell,  yet,  in  the 
first  of  these  cases,  there  was  a  previous  notice  to  the  op- 
posite party,  according  to  the  rule  of  the  civil  law,  and  the 
giving  of  this  notice  was   asserted  to  be  the  constant  prac- 


*  211 


210  CASES  IN  ERROR  IN  THE 

ALBANY,       tice.     The  last  case  was  strictly  a  pledge  of  chattels  to  se- 
*J~s^s      cure  a  loan,  without  a  specified  time  of  payment ;  and  the 
Corteiyou       assignee  of  the  pawnor  who  had  become  a   bankrupt,    was 
Landing.        allowed  to  redeem.     This  case  has,  therefore,  *no  further 
T  connexion  with  the   present  question,    than  to  show    that 
where  no  time  is  fixed,    an   assignee   is    competent   to  re- 
deem. 

The  two  cases  of  Demandrau  v.  Metcalf.\  in  1715,  and 

* Prcc.in  Chan.  v  «•       ,     ,  j 

kSO.9Vern.ei6i.  of  Vcnde7.ee  v.  Willis,  in  1789,  are  cases  of  pledge,  and 
Mr.  324.  'Gilb.  perfectly  in  point  in  favour  of  the  plaintiff.  In  the  one 
Jfro.  it  case,  there  was  a  pawn  of  jewels,    and   in  the  other  of 

bonds  and  securities.  In  both  cases,  the  time  of  payment 
had  elapsed  in  the  life  of  the  pawnor ;  he  died,  and  the 
executors,  on  a  bill  to  redeem  on  payment  of  the  debt  and 
interest,  obtained  a  decree  accordingly.  It  is  said,  indeed, 
in  the  first  case,  that  the  executors  could  not  have  back  the 
jewels,  without  the  assistance  of  chancery. 

If  by  this  was  meant  the  identical  chattel  pawned,  it  was 
perhaps  correct ;  but  if  the  observation  meant  that  the  exe- 
cutors had  no  remedy  but  in  equity,  it  must  be  a  mistake  ; 
for  a  court  of  law  has  complete  jurisdiction  over  the  sub- 
ject, and  is  equally  competent  to  grant  relief  where  the 
right  of  property  is  not  extinguished.  It  would  be  unrea- 
sonable to  turn  the  plaintiff  round  to  another  forum,  when 
there  are  no  technical  difficulties  to  impede,  nor  any  defect 
of  authority  to  give  him  redress  here,  by  restoring  to  him, 
if  not  the  specific  thing,  yet  its  equivalent.  If  a  court  of 
law  will  permit  the  one  party  to  demand  his  debt  after  the 
time,    it   will    equally    permit   the  other  party  to  tender 

*  Str  919.  anc*  redeem4  *n  tne    case  °*  tne  South  Sea  Company  v, 

Duncomb,  K.  B.  5  Ceo.  II.  it  was  decided,  that  where 
the  pawnor  of  stock  did  not  pay  at  the  day  stipulated,  the 
pawnee  had  his  election  to  sue  for  the  debt,  or  to  stand  to 

„  his  remedy  ^against  the  pawn.     The  court  did  not  state  the 

remedy,  but  still  there  was  to  be  a  remedy  under  the  sanc- 
tion of  law,  and  the  only  remedies  hitherto  suggested  in 
the  books,  are  the  process  by  writ,  as  stated   in  Glanville  ; 


STATE  OF  NEW-YORK. 


212 


the  bill  of  foreclosure,  as  hinted  in  other  cases  ;  and  the  sale 
by  the  pawnee,  after  notice  in  cases  of  the  transfer  of 
stock,  as  seems  to  have  been  the  practice. 

From  this  review  of  the  cases,  I  conclude,  that  what- 
ever right  to  redeem  existed  in  the  pawnor  at  his  death,  that 
right  descended  entire  and  unimpaired  to  his  representative. 
There  are  two  decisions  fully  to  this  effect,  and  there  is 
not  a  decision  to  the  contrary,  or  one  which  establishes, 
that  if  no  time  be  limited  to  redeem  a  pawn,  the  right  to 
redeem  is  extinguished  by  the  pawnor's  death. 

The  several  dicta  in  the  courts  which  go  thus  far,  are 
founded  on  principles  manifestly  erroneous.  They  departed 
from  the  true  nature  of  a  pawn,  which  was  well  under- 
stood in  the  Roman  law,  and  well  understood  in  the  days  of 
Glanville  and  Bracton,  who  were,  no  doubt,  greatly  instruct- 
ed by  that  inestimable  system  of  civil  jurisprudence,  al- 
though, with  respect  to  Glanville  in  particular,  he  wrote 
the  English  law  of  his  time,  without  much,  if  any,  adop- 
tion from  the  Roman.  The  error  consisted  in  applying  to 
pawns  the  severe  feudal  doctrine  of  absolute  forfeiture  upqn 
breach  of  a  condition,  whereas  a  pawn  is  in  no  respect  an 
estate  resting  upon  condition. 

It  would  be  a  doctrine  the  most  intolerable  and  oppress- 
ive. In  one  of  the  cases  mentioned,  a  pawn  worth  600A. 
was  deposited  to  secure  a  loan  of  200/.  and  if  no  time  be 
mentioned,  and  the  pawnee  can  *sell  when  he  pleases, 
without  first  calling  on  the  pawnor,  or  if  the  pawnor's 
right  is  gone  by  his  sudden  death,  the  law  would 
establish  a  most  disgusting  speculation,  infinitely  more  odi- 
ous than  the  lex  commissoria;  for  that  was  founded  upon 
express  agreement.  And  although  the  executor  may  not 
redeem,  the  pawnee  has  still  his  election  to  sue,  and  the 
executor  has  not  even  the  privilege  of  the  equitable  rule, 
qui  sentit  onus  debet  sentire  commodum. 

It  may  be  well  enough  to  observe,  by  way  of  illustration, 
that  except  in  cases  of  special  agreement,  the  Roman  law 
never  allowed  a  pledge  to  be  sold  by  the  creditor,  but  upon 


ALBAKY, 

Feb.  1805. 


Cortelyou 

v. 
Lansing. 


*  213 


213  CASES  IN  ERROR  IN  THE 

ALBANY,      notice  to  the  debtor,  and  the  allowance  of  a  year's  redesjp- 
tion.f     And  as  this  was  not  sufficiently  observed,  Justi- 


CorteHcu      man  regulated  the  method  of  foreclosure  by  a  particular  or- 
LassW.        dinance,  by  which  two  years'  notice  or  two  years  after  a 
,     '    .     "    ,    judicial  sentence  was  allowed  to  the  debtor. % 

jPereuus  on  the  J  T 

Code,  vol.  2  62.  It  was  moreover  a  well  settled  rule  in  that  law,  that  the 
do.p.  58.  Hxlbcr-  creditor  could  never  hold  the  pledge  by  prescription  j  and 
a*r.  &t«j is.  p-  $)&  no  length  of  time  would  preclude  the  debtor  and  his 
Vinst. %b.'i.  tit.  representatives  from  die  right  to  redeem,  and  the  reason 
•• ****  ?;  -pS-  given  is  very  conclusive,  because  the  creditor  holds  not  as 
i.  Code,  lib.  s.  hj5  owe,  but  in  another's  right  ;  **  a/icno  nomine  possidet.  § 

tit.  28.  c.  i.  and  -it? 

tit.  u.c.j.  I  believe  there  is  no  country  at  present,  unless  n  be  iin- 
tit.  lS3,  e.'  "l.i.  gland,  that  allows  a  pledge  to  be  sold  but  in  pursuance  of  a 

7ftS*^?8     ^iie  '***"*  v°m  raiscd  m  ll"s  ctjse  is  as  to  ^ie  »ecess^y 

is.  and  i  Do-  0f  payment  or  tender  of  the  money  loaned   *previous  to 

mat.  368.  sec.  7.  l     '  '  c     , 

HuberuB,  vol.  s.  the  commencement  of  the  suit.  I  he  payment  ol  the  mo- 
*sJabo HaUed\  ney  and  the  return  of  the  pledge  were  to  be  concurrent  acts, 
\\T™hkh  allot'-  tot)e  performed  by  each  party  at  the  same  time  and  place,ft 
adfterreihen&.  Each  imtst  show  a  capacity  and  readiness  to  perform,  and 
cr's  death.  YC^  neither  was  to  trust  the  other  personally.     The  one  was 

Tf  Hvberns,  vol.   J 

s.  1072.  sec.  6.  not    actually  to  part   with  his  money,    unless  the  other 

and    Perezius,  "  . 

vo!.2.63.sec.K.  at  the   same  time   showed  a  capacity   and   readiness  to 

as     to    Ho/laud  ,         ,    ,  .  i  i    i 

and  Brabant,  return  toe  pledge ;  nor  was  the  one  to  return  the  pledge 
itSTSc.™1,'  10!  untU  the©ther  showed,  at  the  same  time,  the  like  capacity 
us  as  toFran*'  aoa  readiness  to  Pa.v  *^«  money  ;  the  acts  being  reciprocal, 

and  Scotland.     An<i  mTe  dependent  upon  the  other. 

*  214 

ft-  Kingston  and       &ut  when  one  party  has  incapacitated  himself  to  perform 

Preston,  mug-  his  part  of  the  contract,  there  is  no  need  of  the  other 
«nM6r;.l£a*?'  coming  forward  at  the  time  to  make  a  tender,  or  to   show 

208.  5  Vmer,  84.  " 

innotis.  Twner  himself  in  a. capacity  to  pay,  because  it  would  be  a  nugatory 
act  which  the  law  will  never  require.  If  the  one  party  4i&- 
cliarges  die  other  from  a  performance,  by  saying  he  will 
net  perform  on  his  part,  (and  voluntarily  and  lortiously  ren- 
clering  himself  unaVfle  to  perform  his  part  is  equivalent  to 
such  discharge,)  it  is  well  understood  that  it  is  not  necessary 
for  the  cthir  party  to  go  forward.     This  was  so  decided  in 


STATE  OF  NEW-YORK.  214 

the  case  of  Jones  v.  Barklcy,]  and  the  same  principle  has     ^J*J£ 
been  frequently  advanced  in  other  cases.     In   the   case  of      s^-v^^ 
Judah,  cJ?c.  v.  Kemp,  decided  in  this  court,  October  term,      Cortdyou 
1801,  the  suit  was  in  trover  for  goods;  the  plaintiff  pro-       Unging. 
ved  property  and  a  demand  and  refusal;  the  defendant  was  ^  Dm?    6S4^ 
master  of  a  vessel  and  had  a  lien  on  the  goods  for  freight;  j^TJ^Jj 
on  demand  he  refused  to  deliver  the  goods,   and  said  he 
had  not  orders  to  deliver  them;  no  tender  of  the  freight, 
nor  even  a  capacity  to  make  one  was  shown  ;   the   defend- 
ant did  not  object  to   deliver  on   that,  but  upon  another 
ground.     The  only  question  raised  was,  *  whether  tender  *  21 5 

of  the  freight  ought  to  have  been  made,  and  the  court  de- 
cided that  it  was  not  necessary,  as  the  act  would  have  been 
useless,  and  they  gave  judgment  for  the  plaintiff. 

The  last  question  is  as  to  the  rule  of  damages.  If  the 
direction  of  the  judge  was  correct,  or  if  the  rule  is  to  be 
given  by  the  court,  then  the  verdict  is  to  stand,  and  to  be 
made  conformable  to  such  rule.  But  if  the  damages  are  to 
be  considered  as  in  any  degree  subject  to  the  discretion  of 
a  jury,  a  new  trial  is  to  be  awarded. 

There  is  no  doubt  but  that  the  measure  of  damages  is 
sometimes  a  question  of  law,  but  more  frequently  it  is  to 
be  left  at  large  to  the  discretion  of  a  jury.  In  cases  where 
there  is  a  criterion  for  an  accurate  computation,  that  cri- 
terion must  be  followed,  and  it  becomes,  then,  a  rule  of 

law. 

The  value  of  the  depreciation  note  is  the  measure  of 
damages  in  the  present  case  ;  and  the  only  question  is,  how 
that  value  is  to  be  ascertained.  If  it  is  to  be  ascertained 
from  the  face  of  the  note  ?  or  from  what  time  is  that  value 
to  be  computed?  There  must  be  some  rule  or  principle  on 
the  subject,  and  that  principle,  whatever  it  may  be,  is  a 
question  of  law,  and  not  of  an  arbitrary  ad  libitum  discre- 
tion in  the  jury.  A  great  part  of  our  common  law  juris- 
prudence is  only  a  collection  of  principles,  to  be  selected  » 
and  applied  to  particular  cases,  by  the  discernment  and 
diligence  of  the  courts,     t  have  no  doubt  the  rule  in  the 


215 


CASES  IN  ERROR  IN  THE 


ALBANY, 

Feb.  1805. 

Cortelyou 
v. 

Lansing. 

*  21G 


present  case  is  a  rule  of  law,  and  the  only  examination  is 
to  discover  it. 

The  direction  at  the  trial  was*  the  value  of  the  certificate 
in  17#9,  when  the  plaintiff  went  to  make  a  demand.  This 
must  not  be  understood  to  mean,  *that  the  cause  of  action 
arose  then.  From  that  ground  the  direction  would  have 
been  erroneous.  Putting  out  of  view  the  previous  sale, 
the  plaintiff  has  not  shown  a  cause  of  action  by  his  act  in 
1799,  for  he  ought  at  least  to  have  shown,  that  he  went 
with  a  readiness  and  a  capacity  to  pay.  The  mental  inability 
of  the  defendant  may  have  rendered  him  incapable  of  re- 
ceiving an  actual  demand  from  the  plaintiff,  but  it  surely  is 
not  to  be  construed  into  a  discharge  to  the  plaintiff,  from 
the  performance  of  his  duty,  which  was  to  come  with  a 
disposition  and  ability  to  perform  his  part  of  the  contract ; 
that  act  of  the  plaintiff  was,  therefore,  wholly  immaterial 
as  a  ground  of  action,  and  if  the  value  of  the  note  is  to  be 
estimated  from  that  date,  it  must  be  because  the  plaintiff 
manifested  his  will  to  have  it  then  restored. 

The  value  of  the  chattel,  at  the  time  of  the  conversion, 
is  not,  in  all  cases,  the  rule  of  damages  in  trover ;  if  the 
thing  be  of  a  determinate  and  fixed  value,  it  may  be  the 
rule,  but  where  there  is  an  uncertainty,  or  fluctuation  at- 
tending the  value,  and  the  chattel  afterwards  rises  in  value, 
the  plaintiff  can  only  be  indemnified  by  giving  him  the 
price  of  it,  at  the  time  he  calls  upon  the  defendant  to  re- 
store it,  and  one  of  the  cases  even  carries  the  value  down 
to  the  time  of  the  trial. 

*  *  »        ,*«•-        The  cases  of  Fisher  v.  Prince^  and  of  The  Administrator 

|J  JjllVr.     IaO.5. 

s  Black.  Hep.  Qr  jfunt  Vm  jruiler    have  long  since  settled,  that  if  the  chat- 

902.  See  also  &     J  .  .     , 

JJumf.  G96.  te\  after  the  conversion  increased  in  value,  or  be  attended 
with  other  circumstances,  the  damages  may  be  enhanced 
accordingly.     And  in  the  case  of  Shepherd,  Executor,  &?c. 

*  2  East,  211.      v.  Johnson^  the  defendant  was  sued  for  breach  of  contract, 

*  217  in  not  replacing  *a  certain  quantity  of    stock  by  a  given 

day,  and  the  court  held,  as  the  direction  had  been  to  the 
jury,  that  the  plaintiff  was  entitled  to  recover,  not  merely 


STATE  OF  NEW-YORK.  217 

the  value  of  the  stock  as  it  stood  at  the  day,  but  the  value      ALBANY, 
as  it  stood  at  the  time  of  the  trial.     And  they  said   it  wa3      ^^^ 
no  answer  to  say,  that  the  defendant  might  be  prejudiced  by       Corteiyou 
the  plaintiff's  delay  in  bringing  his   action,  for  it  was  his        Lansing. 
o\vn  fault  that  he  broke  his  engagement,  and  he  might  re-  '""* 
place  the  stock  at  any  time  afterwards,  so  as  to   avail   him- 
self of  a  rising  market ;  I  have   no  doubt  it   is  just  and 
right  that  the  plaintiff  in   the  present  case  ought  to  recover 
the  value  of  the  note  at  the  time  he  chose  to  demand  it ; 
he  has  selected  that  time  to  call  for  his  note  and  to  liquidate 
its  value,  and  no  other  measure  of  damages   short  of  that 
Will  indemnify  him  for  the  loss  of  the  pledge ;  I   agree, 
therefore,  on  this  ground,  to  the  direction  that  was  given. 

These  were  all  the  points  that  were  stated  in  the  case, 
or  raised  upon  the  argument ;  and  they  being  with  the 
plaintiff,  I  take  it  for  granted  he  is  entitled  to  judgment, 
and  a  new  trial  ought  to  be  denied. 


John  Vandenheuvel  against  the  United  Insurarice 
Company* 

IN  error  on  a  judgment  of  the  supreme  court,  in  an  ac-  In  an  action  on 
tion  on  a  Dolicv  of  insurance  on  the  freight  of  "  the  good  surance,the  sen- 

*  tcncc  ot  sl    for- 

American  ship  called  the  Astrea,  at  and  from  New-York,  eign  court  of  ad- 
to  Corunna,"  the  freight  valued  at  ten  thousand  dollars,  at  eooekulve    on 

the  character  of 

a  premium  of  fitteen  per  cent.  the  property. 

*At  the  trial  in  the  court  below,  the  jury    brought  in  a  *  218 

special  verdict  stating,  among  other  things, 

That  the  policy  was  underwritten  by  the  defendants  in 
error,  in  consequence  of  a  written  application  made  to 
them,  by  the  plaintiff  in  error,  in  the  words  and  figures 

following,  to  wit: 

**  Nexv-Tork,  14*/*  November,  1798. 
"  Gentlemen— What  will  be   the  premium  on  the  ship, 
freight  and  cargo  of  the  Astrea,  captain  Price,  consisting  in 

3  A 


218 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Vandenheuvel 

v. 

United  Insur. 

Company. 


*    219 


mahogany,  tobacco,  staves,  dye-wood  and  sugar,  at  and  from 
New-York,  to  Corunna,  to  sail  in  eight  days,  property  of 
the  undersigned. 

J.  C.  Vandenheuvel." 
That  the  ship  in  the  course  of  her  voyage  was  captured 
by  a  British  frigate,  and  carried  into  Gibraltar,  where  she, 
together  with  her  cargo,  were  libelled  in  the  court  of  vice- 
admiralty,  and  condemned  as  lawful  prize  to  the   captors, 
"  as  belonging  at  the  time  of  her  capture  to  Spain,  or  to 
persons  being  subjects  of  the  king  of  Spain,  or  inhabiting 
within  the  territories  of  the  king  of  Spain,  enemies  of  the 
king  of  Great  Britain."     That  the  freight,  by  reason  of 
the  capture  and  condemnation  aforesaid,  was  totally  lost  to 
the  plaintiff  in  error,  who  duly  abandoned  the  same  to  the 
defendants  in  error,  exhibiting  to  them  at  the  same  time, 
due  proof  of  loss  and  interest ;  that  the  freight  was   really 
the  property  of  the  plaintiff  in  error,  and  the  ship  and  car- 
go were  also  his  property,  unless  in  judgment  of  law  the 
plaintiff  in  error  is  concluded  by  the  said  sentence  of  con- 
demnation ;  that  the  ship,  at  the  time  of  the   capture  was 
registered  as  an  American  vessel,  and  had  all  the   papers 
which  an  American  vessel  usually  has  ;  that  *the   plaintiff 
in  error  was  born  a  subject  of  the  United  Netherlands,  and 
continued  such  until  the    3d  June,  1793,    when    he   be- 
came a  naturalized  citizen  of  the  United  States,  according 
to  law  ;  and  the  defendants  in  error,  at  the  time  of  under- 
writing the  said  policy  of  assurance,  well  knew  that  the 
plaintiff  in  error  was  born  a  Dutchman ;  that  the  sum  due 
to  the  plaintiff  in  error,  supposing  him  to  be   by  law  enti- 
tled to  recover  a  total  loss,  is  4,365  dollars  and  6  cents,  and 
the  sum  due  to  the  plaintiff  in  error,  for  return  of  premium, 
supposing  him  to  be  by  law  entitled  to  recover   no  more 
than  a  return  of  premium,  is   700  dollars.     After   stating 
these  facts,  the  verdict  submitted  the  following  questions  to 
the  decision  of  the  court. 

1.  Whether  the  plaintiff  in  error  is  by  law  entitled  to  re- 


STATE  OF  NEW-YORK.  219 

cover  the  said  sum  of  4,365  dollars  and  6  cents,  being  the      ALBANY. 

amount  of  a  total  loss  ?  Vaudenheuvel 

2.  If  the  plaintiff  in  error  is  not  by  law  entitled  to  reco-    Un5tJInsHr 
ver  a  total  loss,  whether  he  is  by  law  entitled  to  recover  the       Company, 
said  sum  of  700  dollars,  being  the  amount  of  return  of 
premium. 

3.  If  the  plaintiff  is  not  by  law  entitled  to  recover  a  re- 
turn of  premium,  whether  he  is  by  law  entitled  to  recover 
any  sum  whatever. 

On  this  verdict  the  supreme  court,  after  argument,  de- 
cided, that  the  plaintiff  in  error  was  not  entitled  to  recover 
as  for«  total  loss  on  the  said  policy  of  assurance,  but  that 
he  was  entitled  to  recover  a  return  of  premium,  whereupon 
judgment  was  entered  for  the  plaintiff  in  error  for  the  sum 
of  700  dollars. 

*In  deciding  on  this  case,  Benson,    Kent,  and  Rad-  *  220 

cliff,  Justices,  thus  delivered  their  opinions. 

Benson,  J.  The  principal  inquiry  in  these  causes  is,  re- 
specting the  effect  of  a  foreign  condemnation,  the  property 
in  the  goods  condemned  being  intended  in  the  insurance  of 
them  as  neutral ;  whether  the  condemnation  is  not  conclu- 
sive against  the  assured?  This  question  has  heretofore 
come  before  us,  but  until  the  arguments  which  have  taken 
place  in  the  present  cause,,  it  does  not  appear  to  me  to  have 
been  so  fully  examined  as  the  difficulty    and  importance   of 

it  require. 

A  condemnation  may  be  viewed,  as  consisting  in  its 
cause  and  in  its  principles,  as  to  be  discriminated  from  each 
other;  and  the  principles  may  be  divided  into  those  which 
velate'to  the  law,  and  those  which  relate  to  the  fact,  com- 
prehending in  the  fact  the  proofs. 

The  distinction  between  the  cause  and  the  principles  ot  a 
condemnation  is  exemplified  in  a  case  read  on  the  argument 
from  a  late  English  reporter,  7  Term  Rep.  Geyer  v.  Agw- 
lar,  where  one  of  the  judges  distinguishes  between  them 


fi20 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Vandenheuvel 

v. 

United  Insur. 

Company. 


*  22J 


as  here  intended  ;  he  expresses  himself :  "  The  ground  on 
which  the  courts  in  France  proceeded,  was,  that  this  was  a 
capture  of  enemy's  property,  and  it  certainly  is  not  contrary 
to  the  law  of  nations  to  condemn  a  ship  on  that  ground. 
Whether  or  not  those  courts  arrived  at  that  conclusion  by 
proper  means,  I  am  not  at  liberty  to  inquire,"  &c.  which  is 
equally  as  if  he  had  said,  the  cause  of  the  condemnation  as 
declared  by  the  courts  of  France,  is,  that  the  ship  was  ene- 
my's property ;  and  which  is  a  sufficient  cause  of  condem- 
nation by  *the  law  of  nations  ;  but  what  were  the  princi- 
ples of  the  condemnation,  namely,  what  were  the  proofs, 
or  what  was  the  fact  as  found  by  those  courts  from  the 
proofs,  or  what  was  the  law  as  adjudged  by  them  to  arise 
from  the  fact,  I  am  not  at  liberty  to  inquire,  &c. 

Insurances  may  be  divided  into  general  and  special.  A 
general  insurance,  is  where  the  perils  insured  against  are 
such  as  the  law  would  imply  from  the  nature  of  the  con- 
tract of  a  marine  insurance  considered  in  itself,  and  sup- 
posing none  to  be  expressed  in  the  policy.  A  special  in- 
surance is  where,  in  addition  to  the  implied  perils,  farther 
perils  are  expressed  in  the  policy ;  and  they  may  either  be 
specified,  or  the  insurance  may  be  against  all  perils. 

"We  have  had  an  instance  of  each  kind  of  these  special  in- 
surances ;  of  the  latter,  in  the  case  ofGoix  v.  Knox,  "  where, 
besides  the  usual  risks  enumerated  in  printed  policies,  it 
was  declared  by  a  clause  in  voriting,  that  the  assurance  was 
to  be  against  all  risks."  And  in  the  former,  in  the  case  of 
Gardiner  &?  others  v.  Smith,  "  where  the  insurance  was 
against  the  risks,  among  others,  of  contraband  and  illicit 
trade,"  and  the  goods  were  seized  at  Jamaica,  while  land- 
ing, and  condemned  as  contraband  and  illicit  by  the  law  of 
that  place ;  and  cases  may  be  supposed  where,  although 
the  property  is  insured  as  neutral,  the  insurer  may,  never- 
theless, expressly  take  on  himself  the  peril  of  condemna- 
tion, for  breach  of  blockade,  or  for  any  other  specified 
or  enumerated  cause  ;  and  in  every  such  case,  should  there 
be  a  condemnation,  the  assured  must  be  allowed  to  show^ 


STATE  OF  NEW-YORK. 


221 


either  by  the  condemnation  itself,  if  it  furnishes  the  re- 
quisite evidence,  and  if  not,  then  by  such  matter  extraneous 
*to  it,  as,  under  the  circumstances  of  the  case,  may  be 
admissible  in  evidence,  that  the  condemnation  was  for  some 
one  of  the  causes  specified  in  the  policy  ;  and  so  far,  and  to 
that  intent,  doubtless,  the  condemnation  is  examinable  in 
the  suit,  by  the  assured  against  the  insurer. 

The  cases  at  bar  are,  as  it  respects  the  perils  of  con- 
demnation, cases  of  general  insurance  as  here  explained. 

Where  the  property  is  insured  as  neutral,  the  law  in- 
tends not  only  that  the  neutrality,  as  an  ingredient  or  quality 
in  the  property  or  ownership  of  the  goods  then  exists,  but 
likewise  that  it  shall  be  preserved  during  the  continuance  of 
the  insurance,  and,  consequently,  that  there  shall  not  be  any 
act  or  omission,  either  by  the  assured  himself,  or  by  others, 
whose  acts  or  omissions  may  in  that  respect  be  deemed  to 
affect  him,  to  forfeit  it ;  and  the  neutrality  constitutes  as  it 
were,  a  title,  the  existence  and  preservation  of  which, 
either  in  himself,  or  in  the  other  persons,  if  any,  on  whose 
account  the  insurance  may  be  made,  or  for  whose  benefit 
it  may,  in  consequence  of  a  subsequent  transfer  of  the 
goods,  be  to  enure,  the  assurance  is  deemed  to  warrant ; 
and  this  warranty,  from  the  assured  to  the  insurer,  is  a 
condition  of  the  insurance,  or  the  indemnity  from  the  in- 
surer to  the  assured. 

Every  condemnation  is  either  rightful  or  wrongful,  h 
the  captured  goods,  being  duly  defended  in  the  court  ot. 
the  captors,  by  alleging  and  proving  the  title  of  the  assured 
as  above  defined,  should,  notwithstanding,  be  condemned, 
the  condemnation  will  be  wrongful.  Every  other  condem- 
nation is  to  be  taken  *as  rightful,  including  a  condemnation 
by  default,  no  person  appearing  to  defend  the  goods  ;  and 
where  the  condemnation  is  wrongful,  it  must  be  attributed 
either  to  the  error  of  the  judge,  as  it  relates  to  the  law,  or 
as  it  relates  to  the  fact  as  deduced  from  the  proofs ;  or  er- 
ror in  the  witnesses,  as  it  relates  to  the  proofs,  in  testifying 
differently  from  the  truth  ;  and  whether  the  error,  either  ot 


ALBANY. 
Vandenheuvel 


United  Insur. 
Company. 

*  222 


*  223 


223 


CASES  IN  ERROR  IN  THE 


ALBANY. 

Vandenheuvel 
v. 

United  Insur. 
Company. 


*  224 


the  judge  or  the  witnesses  be  innocent  or  wilful,  can  never 
affect  the  question,  whether  the  assured  hath  or  hath  not  a 
right  to  controvert  the  condemnation. 

If  the  assured  has  any  such  right,  he  must  have  it  either 
limitedly,  to  controvert  the  principles  which  relate  to  the 
law,  and  not  those  which  relate  to  the  fact ;  or  those  which 
relate  to  the  fact,  and  not  those  which  relate  to  the  law ; 
and  if  to  controvert  those  which  relate  to  the  fact,  still  he 
is  to  be  confined  to  the  proofs  as  they  were  before  the  judge, 
by  whom  the  condemnation  was  pronounced ;  or  he  must 
have  the  right  unlimitedly ',  or,  as  it  is  expressed  in  the  case 
of  Hughes  v.  Cornelius,  2  Show.  232.  to  controvert  the  con- 
demnation "  at  large." 

It  will  readily  be  perceived,  that  as  the  principal  ques- 
tion, whether  the  assured  is  or  is  not  to  be  concluded  by 
the  condemnation,  may  be  differently  decided  ;  so  will  the 
situation  of  the  insurer  be  varied  from  certainty  of  safety, 
to  the  mere  expectation  or  possibility  of  it.  If  the  condem- 
nation is  to  be  conclusive  against  the  assured,  then,  how- 
ever, there  may  have  happened  a  "  capture,  a  taking  at  sea? 
and  so  the  case  within  the  very  terms  of  the  policy ;  yet  if, 
further,  there  has  been  a  condemnation  of  the  goods,  the 
insurer  is  safe  in  an  absolute  sense  ;  but  *if  the  assured 
may  controvert  the  condemnation,  the  safety  of  the  insurer 
then  becomes  uncertain  of  course ;  in  like  manner,  though 
in  less  degree,  may  the  situation  of  the  insured  be  varied, 
as  the  several  questions  respecting  the  limitations  of  the 
right  of  the  assured  to  controvert  the  condemnation,  may 
also  be  differently  decided. 

In  some  cases  it  may  be  more  favourable  for  the  insurer, 
that  the  assured  should  controvert  the  law  and  not  the  fact. 
In  others,  again,  that  he  should  controvert  the  fact  and  not 
the  law  ;  and  it  must  ever  be  most  favourable  to  the  insurer, 
tnat  the  assured  should  be  precluded  from  producing  new 
proofs ;  and  this  difference  of  situation  must  be  viewed  as 
material,  in  the  greater  number  of  cases,  which  probably 
will  happen ;  not  only  so,  but  some  may  easily  be  conceiv- 


STATE  OF  NEW-YORK. 


224 


e  d,  where,  as  it  respects  the  certainty,  or  possibility,  that 
the  assured  can,  or  cannot,  succeed  in  showing  the  con- 
demnation to  be  wrongful,  may  wholly  depend  on  a  different 
decision  one  way  or  the  other,  of  these  questions,  taken 
singly  ;  before,  therefore,  it  can  be  declared  that  the  right 
of  the  assured  to  controvert  the  condemnation  is  limited, 
the  rule  whereby  some  of  the  limitations  of  it  here  sug- 
gested, are  to  be  adopted,  and  others  to  be  rejected,  ought 
to  be  skorvn.  It  may,  however,  be  safely  asserted,  no  such 
Vule  exists  ;  the  limitations  themselves,  the  distinctions  that 
where  a  judgment  is  alleged,  the  party  against  whom  it  is 
alleged  may  controvert  it  as  to  the  law,  but  not  as  to  fact ; 
or  as  to  the  fact,  but  not  as  to  the  law ;  and  if  as  to  the 
fact,  that  he  is  still  to  be  concluded  as  to  the  proof,  not  be- 
ing known  in  the  law ;  and  I  cannot  discern  them,  as  *to 
be  inferred  from  any  thing  peculiar  in  the  contract  of  in- 
surance ;  so  that  the  right  of  the  assured  to  controvert  the 
condemnation  not  being  susceptible  of  limitation,  if,  there- 
fore, he  has  the  right,  he  must  have  it  unlimitedly,  to  con- 
trovert the  condemnation  at  large. 

It  is  now  to  be  stated,  that  where  the  property  is  insured 
as  enemy's  property  and  a  capture  by  an  enemy,  the  other 
belligerent  party,  it  is  inevitable  that  the  goods  will  be  both 
actually  and  rightfully  condemned  ;  they  are  as  much  lost 
to  the  assured  as  if  they  were  captured  by  a  pirate,  and  can 
no  otherwise  ever  happen  to  be  recovered  to  him  than  by  a 
recapture  ;  and  he  may,  in  such  case,  abandon  instantly  on 
the  capture.  But  where  the  property  is  insured  as  neutral, 
there  are  means,  which,  as  to  be  distinguished  from  the 
forcible  or  physical  means  of  recapture,  may  be  denominated 
moral  means,  whereby,  until  a  condemnation  shall  have  taken 
place,  it  is  possible  the  goods  may  be  recovered  :  there  may 
be  a  claim  and  defence  of  them  in  the  court  of  the  captor  j 
and  although  it  is  stated  as  possible  only  that  the  goods  may, 
by  a  defence  of  them,  be  recovered  ;  yet,  if  it  was  requisite 
to  the  argument,  it  might  be  stated  as  the  intendment  of 
law  that  it  h probable;  for  if  the  title  of  the  assured  should 


ALBANY. 

Vandenheuvel 

v. 

United  Insur. 

Company. 


*  225 


225 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Yandenheuvel 

v. 

United  Insur. 

Company. 


*  226 


*  227 


be  duly  alleged  and  proved,  and  the  goods  should,  notwith- 
standing, be  condemned,  the  condemnation,  as  has  been 
already  stated,  must  then  be  to  be  attributed  to  the  error, 
either  of  the  judge  or  the  witnesses,  and  the  law  will  never 
presume  error  beforehand.  If,  however,  there  is  a  possi* 
bility  only,  that,  by  a  defence  of  the  goods,  a  ^condemnation 
of  them  may  be  prevented,  it  is  sufficient  to  make  it  the 
duty,  either  of  the  assured  or  the  insurer,  to  defend  them, 
or  to  bear  the  loss,  if  they  should  be  condemned  undefend- 
ed ;  but  it  will  be  perceived  the  law  can  never  impose  it  on 
the  insurer  to  defend  them. 

Where  lands  are  granted  with  warranty,  if  the  grantee  is 
sued  by  a  person,  claiming  by  better  title  than  the  title  of 
the  grantor,  he  may,  as  it  were,  abandon  to  the  grantor ;  he 
can  compel  him  to  appear  in  court,  and  defend  the  land ; 
he  may  vouch  him,  and  thereby  substitute  him  as  the  de- 
fendant to  abide  the  event  of  the  suit  "for  loss  or  gain  ;' 
and  he  is  the  party  to  be  presumed  best  cognisant  of  the 
title.  Such  is  the  rule  in  the  case  of  a  warranty,  in  the 
nature  of  a  general  contract  of  indemnity,  from  grantor  to 
grantee  ;  but  if  the  assured  may  abandon  to  the  insurer  on 
the  capture,  and  impose  the  defence  of  the  goods  on  him, 
the  rule  will  be  reversed ;  the  warrantor  may  then  substi- 
tute the  warranto/,'  as  the  defendant,  and  the  defence  of  the 
title  will  then  be  imposed  on  the  party  to  be  presumed  not 
only  least  cognisant  but  even  wholly  ignorant  of  it. 

The  warranty  in  a  grant  of  land  being  an  indemnity 
against  the  acts  of  others  claiming  by  title,  and  consequently 
not  against  entries  by  persons  not  so  claiming,  nor  against 
assumptions  of  the  land  by  the  public  authority  of  the  state, 
nor  as  to  any  matter  which  may  have  come  to  exist  there- 
after ;  it  may  be  said  to  be  an  indemnity  against  title  only, 
and  not  against  casualty;  and,  accordingly,  if  there  should 
be  a  judgment  against  the  title  of  the  grantor,  whether 
rightful  or  wrongful,  he  is  alike  held  to  indemnify  *the 
grantee  for  the  loss  of  the  land  ;  but  where  the  property  is 
insured  a$  neutral,  the  warranty  of  the  title,  so  far  from  be- 


STATE  OF  NEW- YORK.  227 


\  Y.ndeiihcuvcl 


ingby  the  insurer  to  the  assured,  being  by  the  assured  to      ALBANY. 
the  insurer,  the  insurance  can  be  a  warranty  or  an  indem- 
nity, not  against  title,  but  against  casualty  only,  against  tor- 

r        '  i  1        •         1  i       i  United  Insur- 

tious  acts  or  private  persons,  and  so  unauthorized  by  law,  Company. 
or  the  acts  of  the  state,  such  as  reprisals,  embargoes  and  im-  — — — — — 
pressments,  the  acts,  in  neither  case,  however,  proceeding 
on  a  supposed  total  absence,  or  a  defect,  or  forfeiture  of  the 
title,  as  warranted  by  the  assured  ;  another  consequence, 
therefore,  of  a  supposed  right  in  the  assured,  to  abandon 
on  the  capture,  and  impose  the  defence  of  the  goods  on  the 
insurer,  will  be,  that  the  insurance  will  thereby  be  essentially 
changed  from  being  an  indemnity  against  casualty  only,  to 
be  likewise  an  indemnity  against  title,  and  against  a  want  of 
that  very  title,  which,  as  has  been  stated,  the  assured  war- 
ranted to  be  existing,  and  that  it  should  be  preserved. 

Farther — If  the  assured  may  abandon  on  the  capture,  he 
is  entitled  then,  also,  to  sue  for  the  loss,  and  the  insurer 
must,  accordingly,  litigate  the  suit,  in  expectation  it  may  be 
in  his  power  to  prove  either  that  the  property  was  not  neu- 
tral, or  that  the  neutrality  had  been  forfeited,  and  so  a  breach 
of  the  warranty,  and  involving  as  a  consequence,  that  the 
goods  may  be  rightfully  condemned ;  or  he  must  pay  the 
loss  voluntarily^  and  also  instantly,  any  credit  allowed  in  the 
policy,  being  wholly  of  special  or  positive  compact  or  regu- 
lation, and  not  arising  from  the  insurance  considered  in 
itself.  If  he  litigates  the  suit  on  the  policy,  he  must  relin- 
quish a  defence  *of  the  goods  in  the  court  of  the  captor,  or  #  228 
expose  himself  to  the  palpable  incongruity  of  insisting  in  the 
suit  by  the  assured,  that  the  goods  may  be  rightfully  con- 
demned, and  of  insisting,  at  the  same  time,  in  the  suit  by 
the  captor,  that  they  are  neutral  property  ;  that  the  neu- 
trality has  been  preserved,  and,  therefore,  that  they  cannot 
be  rightfully  condemned.  On  the  other  hand,  if  he  volunta- 
rily pays  the  loss,  he  then  precludes  himself  from  after- 
wards alleging  a  breach  of  warranty  ;  for,  although  I  forbear 
from  an  opinion,  whether  the  insurer  can  or  cannot  recover 
back  the  money  paid  for  a  loss,  as  having  paid  it,  not  know. 


228 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Tandenheuvel 

v. 

United  Insur. 

Company. 


*  229 


ing  at  the  time,  certain  facts,  which,  if  he  had  knowfl,  he 
might  thereby  have  discharged  himself  from  the  insinance  j 
yet,  I  have  no  difficulty  in  declaring,  that  the  facts  must  be 
such  as  it  may  be  supposed  he  could  not  be  so  apprized  of 
them,  as  to  be  put  on  an  inquiry,  or  to  be  on  his  guard 
respecting  them,  which,  however,  can  never  be  said  to  be 
the  case,  where  goods  being  insured  as  neutral,  are  captu- 
red by  a  belligerent,  it  being  to  be  intended,  as  will  be  more 
particularly  stated  hereafter,  that  they  were  captured,  as 
charged  to  be  enemy's  property,  although  insured  in  the 
name  of  a  neutral ;  and,  therefore,  if  the  assured  will,  not- 
withstanding, voluntarily  pay  the  loss,  he  will  then  be  deemed 
for  ever  to  have  waived  or  renounced  his  right  to  allege  the 
breach  of  warranty ;  and  the  case  will  be  within  the  general 
rule,  that  if  a  party  shall  omit  to  allege  a  fact,  existing  at  the 
time,  and  whereby  he  might  have  defended  himself  against 
a  recovery,  he  shall  not,  as  against  the  other  party  in  the 
suit,  be  allowed  to  avail  himself  of  it  thereafter,  and  which 
was  recognised  in  the  court  of  errors,  in  the  case  of  Le 
*Gnen,  Appellant,  v.  Gouverncur  &  Kemble,  Respondents ; 
where  the  appellant  having  placed  goods  in  the  hands  of 
the  respondents,  as  his  agents,  to  be  sold,  and  having  him- 
self made  a  contract  for  the  sale  of  them  to  Gomez  &?  Co. 
but  leaving  the  sale  still  to  be  perfected  by  the  respondents, 
the  notes  given  in  payment,  were,  accordingly,  to  them  in 
their  own  names,  and  the  vendees  having,  before  the  notes 
became  payable,  proceeded  to  France  with  the  goods  ;  "he 
demanded  from  the  respondents  an  authorization  to  receive 
there,  whatever  sum  should  remain  of  the  proceeds  of  the 
goods,  so  sold  on  his  account,  to  the  above  vendees,  after 
first  deducting  and  reserving  at  their  disposal,  such  sum  as 
should  be  completely  sufficient  to  cover  them,  for  the  ge- 
neral balance  of  their  account ;"  and  they  refusing  to  give 
him  the  authorization,  he  brought  a  suit  against  them  in 
this  court  for  the  refusal,  as  for  a  breach  of  orders,  where- 
by they  had  become  instantly  liable  for  the  value  of  the 
whale  of  the  sale,  and  on  a  special  verdict  he  had  judg* 


STATE  OF  NEW-YORK.  229 

•merit,  and  to  the   amount  so  claimed  by  him.     The  re-  ALBANY. 

spondents  thereupon  filed  their  bill  in  the  court  of  chancery,  «^^v"^'' , 

11                                                                                          *  *  Yandcnheuvel 

to  the  effect  of  a  suit  at  law,  to  recover  back  a  payment,,  to  v. 

.    .                                               ,.                  1.1                                         ■  United  Insur. 

enjoin  him  lrom  proceeding  on  the  judgment,  "  suggesting  Company. 


that  subsequent  thereto,  on  the  trial  in  the  suit  which  they 
had  brought  on  the  notes  against  the  vendees,  a  verdict  had 
been  found  for  the  defendants,  on  the  sole  ground  of  a  fraud 
having  been  practised  by  the  appellant  in  the  sale  of  the 
goods,1'  by  affirming  or  warranting  them  to  be  of  a  better 
kind  or  quality  than  they  were,  **  and  the  Chancellor  order- 
ed an  issue  at  law  to  try  the  fraud.  A  question,  however, 
was  reserved  by  the  counsel  of  both  parties,  to  be  deter- 
mined as  a  preliminary  *to  the  trial,  whether  the  respond-  *  230 
ents  were  not  precluded  by  the  antecedent  circumstances, 
from  insisting  upon  the  alleged  fraud  as  a  ground  of  relief  ? 
The  Chancellor  decreed  they  were  not  so  precluded,  and 
confirmed  the  order  for  the  trial,  and  on  the  appeal,  the  de- 
cree was  reversed,  and  the  respondents1  bill  in  the  court  of 
chancery  was  ordered  to  be  dismissed."  If,  therefore,  the 
assured  may  abandon  on  the  capture,  and  as  the  insurer 
jnust  accept  the  abandonment,  and  pay  the  loss,  then,  al- 
though it  might  afterwards  be  proved  undeniably  in  the 
court  of  the  captor,  that  the  property  was  not  neutral,  the 
insurer  would,  notwithstanding,  be  without  any  means 
of  restitution. 

These  considerations  are  sufficient  to  show  that  the  as- 
sured cannot  abandon  on  the  capture ;  that  it  is  necessary 
the  goods  should  be  defended  in  the  court  of  the  captor  j 
that  the  defence  of  them  remains  on  him  ;  and  that  he  can- 
not cast  it  on  the  insurer.  It  is,  however,  at  the  same  time 
to  be  stated,  that  if,  having  made  a  defence  in  the  court  of 
the  captor,  the  assured  may  still  afterwards  controvert  the 
condemnation  at  large  in  the  suit  on  the  policy,  it  is  obvi- 
ous such  previous  defence  can  be  estimated  as  a  mere  for- 
mality only ;  that  nothing  is  gained  by  it  to  the  insurer, 
but  that  he  is  left  in  the  like  disadvantageous  situation  as  if 
he,  and  not  the  assured,  had  to  defend  the  goods  in  the 


238 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Vandenh     vel 

.    v. 
United  Insur. 
Company. 


231 


#  232 


court  of  the  captor  ;  for  although  in  the  suit  on  the  peiicy, 
instead  of  defending  he  will  have  to  defeat  the  title  of  the 
assured,  still  the  one  case,  equally  as  the  other,  involves 
the  truih  or  falsehood  of  the  same  facts  ;  so  that  the  reasoxir 
ing,  from  what  has  been  stated,  terminates  in  this  conclu- 
sion, that  the  right  of  the  assured  to  controvert  *the  con- 
demnation, if  it  does  exist,  can  exist  no  otherwise  than  to 
controvert  it  at  large ;  that  it  is  his  duty  to  defend  the 
goods  against  a  condemnation  in  the  court  of  the  captor, 
and  that  the  right  and  the  duty  beir.g  incompatible,  the 
right  must  be  declared  not  possible  to  exist.  Lest,  how- 
ever, the  reasoning,  as  it  may  respect  the  question,  whe- 
ther the  assured  can  or  cannot  abandon  instantly  on  the 
capture,  may  be  considered  as  inconclusive  and  unsatisfac- 
tory, unless  it  be  shown  when  he  can  abandon,  it  may  be 
requisite  still  briefly  to  state,  that  besides  the  case  of  a  cap- 
ture by  an  enemy,  the  opposite  belligerent  party,  where  the 
goods  are  insured  as  enemy's  property,  and  a  capture  by  a 
pirate,  there  is  another  case  where  the  assured  may  aban- 
don on  the  capture  :  The  case  of  a  capture  by  way  of  re- 
prisal, and  which,  indeed,  is  in  the  nature  of  a  capture  by 
an  enemy,  but  that  every  other  capture  being  necessarily 
by  a  friend,  in  relation  to  the  captured,  must  be  intended 
to  be  that  the  goods  are  to  be  carried  into  a  port  of  the 
captor,  for  a  regular  and  authorized  examination  or  adjudi- 
cation, whether  they  are  or  not  lawful  prize,  either  as  be- 
ing covertly  enemy-property  ;  or  if  neutral,  that  the  neutrali  - 
ty  has  become  forfeited,  and  the  assured  being  held  to  fol- 
low the  goods  and  defend  them,  and  the  condemnation  be- 
ing conclusive  against  him,  should  they  be  condemned,  it 
results  that  he  can  abandon  only  in  the  event  of  their  being 
restored  to  him,  and  the  voyage,  in  consequence  of  the  cap- 
ture and  detention,  broken  up  ;  and  if  the  insurer  shall  there- 
upon pay  the  loss,  then,  whatever  right  or  remedy  there 
may  be  against  the  c;#Jtor,  will  enure  to  his  benefit. 

*  The  practice  in  France  has  been  urged  as  a  precedent, 
and  Emerigon  has  been  read  on  the  argument,  to  show 


STATE  OF  NEW- YORK. 


232 


what  is  there  received  as  law  on  the  subject.  "  The  act  of 
the  prince  is  put  in  the  class  of  casualties  (La  classe  des  cas 
fortults)  and  such  also  is  the  case  (//  en  est  de  meme  dufait) 
as  to  the  unjust  sentence  of  a  magistrate  ;  and  it  is  of  no 
importance  whether  the  injustice  proceeds  from  the  corrup- 
tion of  the  judge  or  his  ignorance  ;  so  that  it  is  then  cer- 
tain, that  the  insurers  shall  answer  for  an  unjust  condemna- 
tion pronounced  by  the  tribunal  of  the  place  into  which  the 
captured  ship  shall  be  carried,  judgments  rendered  by- 
foreign  tribunals  being  of  no  weight  in  France  against 
Frenchmen,  the  cause  being  to  be  decided  anew  ;  whence 
it  follows,  that  a  judgment  of  condemnation  pronounced  by 
an  enemy-tribunal,  is  no  proof  that  there  hath  been  a  con- 
cealment of  the  real  personyor  whose  account  the  insurance 
was  made  (que  le  veritable  pour  compte  ait  ete  cache)  nor  any 
title  (tin  titre)  which  the  insurer  may  allege  to  avoid  paying 
the  loss.  Such  is  our  jurisprudence."  Emerigon,  c.  12. 
s.  20. 

The  last  sentence  may  be  expressed  in  other  words, 
"  such  is  our  interpretation  of  the  contract  between  the  as- 
sured and  insurer,  as  to  the  right  of  the  assured  to  contro- 
vert a  foreign  condemnation,  the  property  being  insured  as 
neutral."  The  argument,  as  contained  in  what  is  here 
cited,  is,  that  an  insurance  being  an  indemnity  against 
casualty,  and  an  unjust  foreign  condemnation  being  a 
casualty,  an  insurance  is  therefore  an  indemnity  against  an 
unjust  foreign  condemnation  ;  and  the  act  of  the  prince  be- 
ing a  casualty,  the  proof  of  the  minor  term  in  the  syllo- 
gism *consists  in  an  assertion,  that  the  act  or  unjust  sen- 
tence of  a  magistrate,  is  to  be  classed  equally  with  the  act  of 
a  prince  among  casualties ;  whereas  it  is  difficult  to  conceive 
two  acts  less  of  the  same  class  or  nature,  and  especially  as 
it  respects  assured  and  insurer,  than  the  act  of  a  prince  in 
the  exercise  of  mere  sovereignty,  arresting  goods  either  for 
permanent  appropriation,  or  for  temporary  use,  or  deten- 
tion only,  and  the  act  of  the  magistrate  in  function  as  a  judge 
between  captor  and  captured,  condemning  the  goods  as  for- 


ALBANY. 

Yandenheuyel 

v. 

United  Insur. 

Company. 


*  23.1 


2&J 


CASES  IN  ERROR  IN  THE 


ALBANY. 

Vandenheuvel 

v. 

United  Insur. 

Company. 


*  234 


feited  to  the  captors.  The  act  of  the  prince  is  arbitrary,  and 
can  be  justified  only  from  necessity,  for  reasons  of  state, 
and  may  consist  with  an  admission  of  a  perfect  title  to  the 
goods  in  the  captured,  the  person  from  whom  they  may  be 
taken  ;  whereas,  the  act  of  the  magistrate  is  judicial,  and  if 
right,  can  be  only  so,  as  warranted  by  the  law  of  property, 
and  is  in  denial  of  the  title  of  the  captured.  In  case  of  an 
arrest  by  a  prince,  the  right  of  action  of  the  assured  accrues 
by  the  arrest,  and,  therefore,  whether  it  can  be  justified  or 
not,  is  never  brought  into  question ;  but  where  there  is  a 
condemnation  by  a  magistrate,  the  right  of  action  does  not 
accrue  by  the  condemnation  itself,  it  can  only  be  conceived 
to  accrue  by  the  supposed  injustice  of  it.  If  the  arrest,  the 
act  of  the  prince,  is  of  that  class  of  acts  for  which  the  in- 
surer is  to  answer ;  then  it  is  immaterial  whether  it  is  a 
foreign  or  domestic  arrest,  if  the  term  "  domestic"  may, 
for  the  sake  of  brevity,  be  used  and  applied  to  an  arrest  by 
a  prince,  and  a  condemnation  by  a  magistrate,  to  distin- 
guish it  as  having  happened  in  the  same,  and  *not  in  a  dif- 
ferent nation  from  that  where  the  assured  shall  have  sued 
on  the  policy,  the  insurer  is  equally  to  answer  for  the  one 
as  the  other ;  but  as  it  relates  to  a  condemnation,  the  dis- 
tinction between  foreign  and  domestic  is  essential;  the 
right,  as  contended  for,  being  to  controvert  a  foreign  con- 
demnation only ;  and,  consequently,  a  domestic  condemna- 
tion is  always  to  be  received  as  conclusive  against  the  as- 
sured ;  hence,  it  is  evident,  that  if  an  unjust  sentence  of  a 
magistrate  is  a  casualty  for  which  the  insurer  is  to  answer, 
it  cannot  be  so  as  being  of  the  same  class  with  the  act  of 
the  prince :  or  that  if  it  should  be  admitted  to  be  a  casualty, 
as  being  so  of  the  same  class,  or  like  an  act  of  the  prince, 
then,  as  the  insurer  is  equally  to  answer  for  the  arrest, 
whether  it  is  domestic  or  foreign,  so  ought  he,  in  like  man- 
ner, to  answer  for  the  condemnation,  whether  it  is  domes- 
tic or  foreign  ;  and,  therefore,  that  as  far  as  the  argument 
for  the  right  of  the  assured  to  controvert  a  condemnation, 
depends  on  a  supposed  similitude  between  an  unjust  con- 
2 


STATE  OF  NEW-YORK. 


234 


demnation  by  a  magistrate  and  an  arrest  by  a  prince,  and  so 
far  as  it  also  depends  at  the  same  time  on  the  distinction 
between  a  foreign  and  domestic  condemnation,  and  that  the 
right  is  only  to  controvert  the  former  but  not  the  latter,  it  is 
at  variance  with,  and,  consequently,  defeats  itself. 


ALBANY: 


Vandenheuvel 

v. 

United  Insur. 

Company. 


Emerigon,  in  farther  support  of  the  assertion — "  that  an 
Unjust  condemnation  is  a  casualty,  for  which  the  insurer  is 
to  answer,"  refers  to  Roccus,  Not.  54.  "  Merces  captce  a 
potestate.  seu  judice  justittam  administrante  in  Mo  loco,  aut  a 
popido,  aut  ab  aliqua  quacunque  persona  per  vim,  absque pretii 
solutione,  tenenter  assecurctores  solvere  tzstimationem  *domi* 
nis  mercium,  facta  prius  per  dominos  mercium  cessione  ad 
benejicium  assecuratorum  pro  recuperandis  Mis  mercibus,  vel 
pretio  ipsorum  a  capientibus,  lit  probat  Stracc  :  De  Assecu- 
rat:  Gloss:  20.  et  sequitur  foan:  de  Evia  in  Labyrint: 
Commer.  naval :  lib.  3.  c.  14.  numb.  25".  et  melius  fundatur 
ex  dictis  a  Santer  :  De  Assecurat :  pars  4.  num.  20.  ubi  ad- 
ducit  casum  de  injustitia  facta,  ab  aliquo  judice  ex  quo  merces 
amittantur  vel  damnum  aliquod  sent'umt,  an  comprehendatur 
sub  promissione  casus  fortuiti  et  assecurator  teneatur  ?  Ad- 
ducit  Bart:  in  L:  except ione  col:  penult:  in  fin :  ff:  de 
fidejwso  ;  ubi  Mud,  quod  judex  facta  injuste,  quoad  partes^ 
dicitur  casus  fortuitus,  et  pertinet  ad  emptorem  rei,  et  sig 
videtur  in  assecuratione  quod  pertinet  ad  Mum  qui  in  se  sits- 
ccp'it  casum  fortuitum."  I  do  not  possess  the  authors  here 
referred  to  by  Emerigon,  but  I  find  the  last,  Bartolus,  refer- 
red to  by  Perezius,  as  a  writer  on  the  civil  law.  Recourse, 
therefore,  must  be  had  to  that  law  to  discover  the  evictions 
of  the  things  sold,  (the  condemnation  intended  by  him  as 
casualties,  (casus  fortuiti)  and  so  belonging  to  the  buyer 
qui  pertinet  ad  emptorum,)  to  bear  the  loss  himself,  to  be 
as  distinguished  from  those  for  which  the  seller  is  to  answer, 
in  order  thereby  farther  to  discover,  whether  in  a  suit  judi- 
cially heard  and  determined  between  captor  and  captured,  a 
condemnation  of  the  goods  as  a  prize  to  the  captors  for  want 
of  tide  in,  the  captured,  and  alleged  to  be  wrongful,  is  an 


*  235 


MS  CASES  IN  ERROR  IN  THE 

ALBANY.      eviction  of  the  captured,  the  assured,  for  which  the  insurer 
s^~*rw-/      is  to  answer  ?     "  Tenetur  de  evictione  venditor — Porro  evkta 

Vandenheuvel  ...  ,.  ^  .  ,. 

v.  re  daiur  emptori  actio  adversum  venditorem — hst  ex  empto 

^Compa^1'    actio,  quae  inest  natura  contractus* — Cessat  evictionis  pross- 

' tatio  ob  culpam  emptoris — Culpam  committet  emptor,  neque 

235  de  evictione  agere  potest,  si,  cum  posset  venditori  denunciarc, 

non  denunciaver it  motam  controversiam,  utque  judkio  adesset 
et  rem  defenderet,  nam  venditori  poterat  fuisse  justa  defen- 
sionis  causa  utpote  scienti  melius  rei  a  se  venditce  jus  et  con- 
ditionem — Ac  sic  in  causa  evectionis  sententia  lata  contra 
emptorem  ei  sit  regressus  contra  venditorem  si  vocatus  ab 
emptor e  venditor  in  judkio  comparuerit  ad  rei  defensionem 
earn  que  susceperit,  quia  nihil  est  quod  imputetur  emptori,  qui, 
tit  requiritur,  denunciavit  venditori  motam  litem,  cut,  quod 
cam   defendere   non  potuerit,    imputandum   erit."     Pcrezii 
Prcelect :  in  lib.   8.  cod.  tit.  45.  de  evictioneb,     From  these 
passages,  it  is  evident,  that  the  evictions,  intended  by  Bar- 
tolus  to  be  deemed  casualties,  and  so  the  loss  by  them  to  be 
borne  by  the  buyer,  must  be  of  a  different  class  or  kind  from 
an  eviction  for  the  want  of  title  in  the  seller,  he  having  been 
vouched  to  appear  and  defend  his  title  (vocatus  at  injudi- 
eio  compareat  ad  rei  defensionem)  and  the  civil  law,  as  to 
the  warranty  from  the  seller  to  the  buyer,  in  respect  to  the 
eviction,  or  other  act  whereby  the  buyer  may  lose  the  thing 
sold,  when  the  loss  is  to  be  borne  by  the  buyer,  and  when 
the  seller  is  to  answer  for  it,  being  the  same  with  our  own 
law,  it  is  not  necessary,  as  an  answer  to  the  argument,  from 
the  supposed  analogy  between  the  case  of  seller  and  buyer, 
and  the  case  of  assured  and  insurer,  to   add  to  what  has 
already  been  stated  in  comparing  or  contrasting  a  warranty 
in  a  grant  of  lands,  with,  an  insurance,  the  property  be- 
ing insured  as  neutral ;  and  it  only   remains   to   be  re- 
*  237  marked  *on  Emerigon,  considered  as  an   authority,    that 

Roccus  himself,  on  whom  he  relies,  does  not,  by  the  act  of 
the  judge  in  taking  the  goods,  and  for  which  the  insurer  is 
to  answer,  intend  a  judicial  act  or  procedure  between  cap- 
tor and  captured  in  a  case  of  taking  or  capturing  goods  as 


STATE  OF  NEW-YORK.  237 

lawful  prize  ;  the  taking,  as  he  describes  it,  being    within      ALBANY, 
the  territory  where  the  judge  has  jurisdiction,  {captce  ju-    Vandenheuvel 
dice  justitiam  administrante  in  Mo    loco)  but  a  taking  as  a    United  Tnsur. 
prize,  it  is  to  be  supposed,  would  have  been  mentioned  by       Comdauy. 
him  as  taken  at  sea.     That  the  injustice  of  the  taking  con- 
sists in  its  being  without  paying  for  the  goods,  (absque   so- 
lutione  pretii)   necessarily  importing  that  the  captured,  the 
person  from  whom  they  were  taken,  was  entided  to  be  paid 
for  them,  and  which  again  necessarily  affirms    his   title  to- 
them ;  but  when  the  goods  are  taken  from  the  captured,  and 
adjudged   to  the  captors,  the  injustice,  if  any,  as  it  respects 
the  act  of  the  judge,  consists  in  an  error  in  him  in  disaffirm- 
ing any   title  in  the  captured,  but  not  in  his  awarding  the 
goods  to  the  captors  without  any   recompense  to   the  cap- 
tured.    The  official  act,  therefore,  of  the  magistrate  in  ta- 
king the  goods  intended  by  Roccus,  can  be  no  other  than  an 
act  in  the  nature  of  an  impress,  and  for  which  the   insurer 
is  unquestionably  to  answer;  and  that  to  suppose  an  unjust 
sentence  a  casualty,  so  as  that  the  insurer  is  to    answer  for 
it,  is  altogether  fallacious  ;  casualty    being  applicable    only 
to  a  fact  possible,  that  it  will,  or  will  not  happen,  until   it 
either  shall  have  happened,  or,  by  the  intervening  happen- 
ing of  some  other  fact,  shall  have  become  impossible   ever 
to  happen  ;  in  each  case,  however,  it  equally  ceases   to  be 
casual,  *and  becomes  certain,  in  the  one  that  it  has  happened,  *  238 

and  in  the  other  that  it  cannot  ever  happen  ;  but  that  ca- 
sualty is  not  applicable  to  the  sentence  of  a  judge  on  the 
question,  whether  it  is  just  or  unjust,  or  to  any  ether  mere 
opinion,  whether  it  is  right  or  wrong,  declared  on  any  sub- 
ject. For  although  it  may  be  afterwards  demonstrated  that 
the  opinion  is  right,  or  that  it  is  wrong,  yet  it  never  can  be- 
come either  certainly  right,  or  certainly  wrong,  as  having 
before  been  casual,  whether  it  would  be  right,  or  whether 
it  would  be  wrong.  It  is  true  that  the  law  has  ordained 
that  every  judgment,  until  reversed,  shall  be  taken  to  be 
certainly  right ;  if  it  should  be  reversed,  it  is  then  to  be 
*aken  as  certainly  wrong,  and  the  judgment  of  rev^r<^l   i< 

3  C 


Yuivlenheuvel 


238  CASES  IN  ERROR  IN  THE 

ALBANY,  to  be  taken  as  certainly  right.  If  the  judgment  of  reversal 
should  be  reversed,  the  first  judgment  being  thereby  affirm- 
ed, is  again  to  be  taken  as  certainly  right,  and  the  judgment 
UCom  IT™'  of  reversal  as  certainly  wrong ;  but  this  legal  or  artificial 
--  ■  — ■■  certainty  is  in  no  manner  the  same  with  that  certainty  exist- 
ing in  nature,  and  having  as  its  opposite,  casualty.  Cer- 
tainty, as  opposed  to  casualty,  is  to  be  proved  as  a  fact,  to 
have  either  physically  happened,  or  become  impossible  to 
happen,  and  not  to  be  demonstrated  as  a  proposition, 
either  morally  right  or  morally  wrong.  The  opinion  whether 
a  sentence  is  just  or  unjust,  may  be  ambulatory  for  ever. 
Thus  it  is  manifest,  that  the  practice  in  France  is  erro- 
neous ;  and  there  is  reason  to  suppose  it  to  have  proceeded 
from  a  misapprehension  of  the  very  authorities  cited  to 
prove  it  warranted  by  law  or  principle.  It,  however,  hav- 
ing obtained,  and  being  established  in  fact,  in  the  nature 
*  239  °f  a  custom,  or  usage,  it  ought,  perhaps,  *not  to  be  chan- 

ged there ;  for  both  parties  being  apprized  of  it,  they  can 
make  their  calculations,  as  to  the  risk  and  premium,  accord- 
ingly, and  in  that  view  of  it,  no  injury  will  be  produced  by 
it ;  but  it  certainly  can  have  no  influence  on  the  present  in- 
quiry, which  is,  as  to  the  true  interpretation  of  the'contract, 
according  to  universal  law,  independent  of  any  positive  lo- 
cal practice  whatever. 

I  will  now  briefly  apply  to  the  case  of  an  insurance,  the 
law,  as  declared  in  the  case  of  Hughes  v.  Cornelius,  already 
cited,  it  being  the  most  ancient  case  in  the  books,  as  to  the 
effect  of  a  foreign  condemnation  ;  and  the  adjudication 
which  took  place  in  it,  having  never  been  questioned,  the 
case  is  now  to  be  viewed  as  of  the  highest  authority. 

The  judges,  in  that  case,  not  only  assume  it,  that  a  do- 
mestic condemnation  is  to  be  received  as  conclusive,  but 
they  suppose  that,  therefore,,  a  foreign  condemnation  ought 
likewise  to  be  so  received ;  they  argue  the  conclusiveness 
of  the  latter  from  the  conclusiveness  of  the  former ;  they 
express  themselves,  "  as  we  are  to  take  notice  of  a  sentence 
in  the  admiralty   here,  so   ought  we    of   those  abroad  in 


STATE  OF  NEW-YORK.  239 

other  nations,  and  we  must  not  set  them  at   large  again."      ALBAXY. 
It  is  true,  the  question  was  only  as  to  the  <£>«*,  and  not  as  |Vandenheuvei 
to  the  collateral  effect  of  a  condemnation  ;  but  the  reason-    UnitedvInsur 
ing  with  which  the  judges  close  their  opinion,  that  a  foreign       Company. 
condemnation  is  to  be  conclusive,  as  to  the  direct  effect  of  ~ 
it,  namely,  "that  if  the  captured  is    aggrieved,    he   must 
apply  himself  to  the  king  and  council,  it  being  a  matter  of 
government,  he  will  recommend  it  to  his  liege's  embassa- 
dors, if  he  see  cause,  and  if  not  remedied,  he  may  grant  #  ^ 
^letters  of  mart  and  reprisal,"  will  equally  apply,   that    it 
is  to  be  conclusive  as  to  the  effect  of  it  on  an  insurance ; 
and  not  only  contains  a  sufficient  answer  to  the  objections  to 
receiving  it  as  conclusive,  as  to  such  effect  of  it,  but   obvi- 
ously supposes,  that  as  to  the  several  effects   of  a  condem- 
nation in  respect  to  the  conclusiveness  of   it,    there   is   no 
difference  between  them. 

The  objections  to  receiving  a  foreign  condemnation  as  con- 
clusive against  the  assured,  if  I  have  rightly  understood 
them,  and,  indeed,  as  some  of  them  are  expressed  by  a 
late  English  writer  on  the  law  of  insurance,  Park,  363.  also 
read  on°the  argument,  are,  "  that  the  judges  of  a  foreign  na- 
tion may  pp  ssibly  decide  on  their  own  municipal  laws  or 
ordinances,  contravening,  or  not  forming  a  part  of  the  law  of 
nations  ;"  and  further,  that  the  judge  of  a  belligerent  nation 
cannot  be  view  ed  as  standing  indifferent  between  a  neutral 
nation  and  his  own,  in  deciding  on  the  interfering  rights  of 
neutrals  and  belligerents,  as  depending  on,  or  to  be  deduced 
from,  the  law  of  nations. 

That  even  the  most  enlightened  and  upright  judges  may 
oftentimes,  and  in  a  great  degree  be  under  the  influence  of 
a  national  partiality,  can  scarcely  be  denied  ;  such  is  hu- 
man nature,  uparum  cavet  natural  But  can  neutral  na- 
tions say  they  are  less  susceptible  of  interest  or  passion, 
than  belligerent  nations  ?  Is  not  the  armed  neutrality  in 
Europe,  in  1780,  to  compel  the  British  to  acknowledge  and 
observe  it  as  a  principle  of  the  law  of  nations,  that  free 
ships  make  free   goods,    a  proof  of  directly  the  reverse  > 


240  CASES  IN  ERROR  IN  THE 

ALBANY.      Can  our  nation  claim  us,  or  can  we  claim  ourselves,    to 
y^~>^--'      *De  more  free  than  the  judges  of  belligerent  nations,  from 

Vandenhcuvel 

v.  national  partialities  ?     If  the  assured  is  warranted  in  sur- 

Uniled  Insur.         .   .  .    ..         .        ,        ,     .,.  .     ,  , 

Company.      mismg  a  partiality  m  the  belligerent  judge,  is  not  the  m- 
„      ~~  surer  equally  warranted  in  surmising  it  in  us,  and,  conse- 

quently, will  not  justice  between  them  as  to  the  question, 
and  according  to  its  just  and  equal  merits,  whether  the 
principles  of  the  condemnation,  as  they  relate  to  the  law  of 
nations,  are  right  or  wrong,  be  alike  to  be  suspected  as 
fallible,  when  declared  by  us,  as  when  declared  by  the 
judges  of  the  belligerent  nations?  But  a  sufficient,  and, 
perhaps,  the  most  proper  answer,  to  the  whole  of  the  ob- 
jection, is  furnished  in  substance,  by  the  judges  in  the  opi- 
nion above  cited  from  the  case  of  Hughes  v.  Cornelius,  that 
if  a  judge  of  one  nation,  in  case  of  a  capture  at  sea,  will 
assume  novel  and  false  principles,  as  principles  of  the  law 
of  nations,  or  misapply,  or  unduly  extend,  or  restrict  such 
as  may  have  been  already  received  and  sanctioned,  or  mis- 
interpret a  treaty,  or  decide  wholly  on  the  particular  regula- 
tions of  his  own  nation,  repugnant  to,  or  deviating  from, 
the  law  of  nations,  or  by  whatever  other  erroneous  reason- 
ings or  means,  considered  as  the  principles  relative  to  the 
law  in  the  case,  he  shall  come  to  it  as  legal  conclusion,  that 
the  goods  captured  ought  to  be  condemned  as  prize,  either 
as  being  enemy-property,  or  for  breach  of  blockade,  or  as 
being  contraband  of  war,  or  for  any  other  cause  whatever, 
every  such  condemnation  would  be  a  grievance  on  the  cap- 
tured, against  which  his  nation  is  to  claim  and  procure  re- 
paration for  him.  It  would  be  perfectly  a  casus  foederis  ;  a 
case  where  the  nation,  in  virtue  of  the  mutual  obligation 
*  242  *of  allegiance  and  protection,  between  sovereign  and  sub- 

ject, would  be  held  to  interfere  and  remonstrate  against  the 
principles  of  the  condemnation,  and  insist  that  they  be  dis- 
avowed or  renounced,  and  that  reparation  be  made  to  the 
captured ;  who,  instead  of  seeking  for  indemnity  from  an 
underwriter,  through  the  medium  of  a  court  of  justice, 
must  seek  for  it  from  the  foreign  nation  itself,  through  the 


STATE  OF  NEW-YORK.  242 

medium  of  the  government  or  sovereignty  of  his  own  na-      ALBANY. 

tion.  Vandeiiheuvel 

I  conclude  with  remarking  that,  possibly,  as  1  have  al-    Unit JInsar 
ready  intimated,  an  insurer  may,  by  especial  or  express  in-       Company, 
surance,  take  on  himself  the  peril  of  arv  unjust  condem- 
nation ;  and  something  of  that  kind  has  been  attempted,  by 
inserting   a  clause  in  the  policy  to  the   following  effect : 
"  Warranted  American  property,  and  proof  thereof  to  be 
made,  if  required,  in  Nexv-Tork  only  «*  but  whether  an  in- 
surance in  this  form,  is  sufficiently  provisional  or  explicit  ? 
Whether  it  would  be  deemed  to  be  against  a  condemnation 
for  any  cause,  or  against  a  condemnation  for  some  causes 
only,  and  not  others;  and  if  so,  which  the  causes  are,  as 
to  be  discriminated  from  each  other?      And  especially, 
whether  the  assured  may  abandon  on  the  capture,  or  whe- 
ther he  is  not  bound  to  follow  the  goods  into  the  court  of 
the  captor,  and  there  defend  them  ?     Or,  in  short,  whether 
it  is  possible  to  devise  a  form,  fully  and  distinctly  providing 
for  all  the  cases  and  events  which  may  occur  ?     Or,  whe- 
ther it  is  not  unavoidable,  that  the  whole  must  be  put  on 
the  simple   footing  of  a  war  premium,  and  a  war  risk;  so 
that  all   understanding,    representation,  or   warranty,  that 
the  property  is  neutral,  and  that  the  neutrality  is  to  be  pre- 
served, and  not  forfeited,  are  to  be  altogether  laid  out  of 
the  *contract  between  the  parties  ;  are  questions  which  I  *  243 

suggest,  as  probable  to  arise,  but  on  which  it  is  not  neces- 
sary that  I  should  express  an  opinion  in  deciding  the  case 
at  bar,  it  being  a  case  of  general  insurance,  and  where^ 
for  the  reasons  I  have  assigned,  my  opinion  is,  that  a 
foreign,  equally  as  a  domestic  condemnation,  is  to  be  re- 
ceived as  conclusive  against  the  assured. 

Radcliff,  J.  This  was  an  insurance  on  the  freight  of 
the  Astrea,  from  Nexv-York  to  Corunna  in  Spain.  The 
policy  was  subscribed  by  the  defendants  on  the  19th  Novem- 
ber, 1798,  in  consequence  of  a  written  representation  from 


MS  CASES  IN  ERROR  IN  THE 

ALBANY,      the   plaintiff,  stating  the   ship,  freight  and  cargo  to  be  his 
v-k^v-^-/     property. 
Vandcnheuvel        ^   plaintiff  was    originally  a   subject   of  the    United 
UCompIanS}"r'    Netherlands  and   continued  so  till  the  3d  January,  1793, 
'"■  '■-■■    ■■■■'    when  he  was  naturalized  as  a  citizen  of  the  United  States. 
He  must,  of  course,  have  emigrated  to  America  at  least 
two  years  antecedent  to  that  period,   and  before  the  United 
Netherlands  were  involved   in  the  late  European  war,  and 
he  is  stated  to  have  been  personally  known  to  the  defend- 
ants. 

The  vessel  during  the  voyage  was  captured  by  a  British 
frigate  as  prize,  carried  to  Gibraltar,  and  with  her  cargo 
there  condemned  by  the  court  of  vice-admiralty,  on  the 
ground  of  her  "  belonging  at  the  time  of  her  capture  to 
Spain,  or  to  persons  being  subjects  of  the  king  of  Spain,  or 
inhabiting  the  territories  of  the  king  of  Spain,  enemies  of 
Great  Britain."  From  the  situation  of  the  plaintiff,  and 
the  representation  to  the  defendants,  the  insurance  must  be 
considered  as  made  upon  American  or  neutral  property. 
The  representation  is  to  this  purpose  equivalent  to  a  war- 

*  244  ranty  of  that  fact,  and  liable  to  the  *same  result.     In  my 

view  of  the  subject  two  questions  arise. 

1st.  Whether,  upon  the  terms  of  the  contract,  the  plain- 
tiff is  entitled  to  recover  ? 

2d.  Whether,  in  respect  to  the  fact  of  neutrality,  he  is 
concluded  by  the  foreign  sentence  ? 

If  upon  the  contract  he  would  be  entitled  to  recover,  and 
is  not  concluded  by  the  sentence,  it  is  conceded  or  offered 
to  be  proven  that  the  property  was  in  reality  neutral,  or 
such  as  was  so  represented  to  the  defendants. 

The  second  question  has  already  been  twice  determined 
^January  term,  in  this  court ;  first,  in  the  case  of  Ludlow  and  Dale,}  in 
X7W*  which  I  gave  no  opinion,  it  being  argued  before  I  took  my 

*  April  tern,,    seat;  and,  secondly,  in  the  case   of  Goix  and  Low.%     In 
180°-  the  last,  although  the  subject  in  some  respects  presented  it- 
self to  my  mind  in  a  different  light,  I  was  content  to  ac- 
quiesce in  the  opinion  which  had  been  previously  delivered, 

6 


STATE  OF  NEW-YORK.  244 

considering  the  rule  to  have  been  definitively  settled  as  far      ALU  any. 
as  depended  on  this  court.     The  magnitude  of  the  r>ues-    Vaidenheuwl 
tion  has  induced  us  to   review  it  in  diis  and  other  causes>    Uliittd'ins,lr. 
but  notwithstanding  the  able  and  zealous  discussion  it  has       lompaay. 
received,  I  can  perceive  no  new  lights  on  vvluch  to  change 
my  opinion. 

•  It  may  be  premised,  that  in  the  course  of  the  argument 
much  was  said  of  the  policy  of  the  English  courts  in  de- 
ciding this  question  in  favour  of  the  insurer,  and  the  policy 
of  our  adopting  a  different  rule.  On  a  careful  examination 
of  the  English  decisions,  I  cannot  discover  any  ground  for 
this  suggestion.  They  appear  to  rest  on  principles  uncon- 
nected with  any  motive  of  policy,  and  are  indiscriminately 
applied  to  their  domestic  as  well  as  to  foreign  tribunals. 
*If  the  consideration  were  proper  in  determining  a  rule  for  *  245 

ourselves,  I  am  unable  to  perceive  its  force  or  applica- 
tion. 

In  every  instance  of  a  foreign  condemnation  a  loss  must 
necessarily  happen.  If  the  property  be  really  American, 
and  insured  here,  the  burthen  must  fall  on  some  of  our  citi- 
zens. It  is  then  a  question  between  them  solely,  and  it 
can  never  be  politic  or  just  to,  seek  to  shift  the  loss  from  one 
description  of  citizens  to  another.  If  the  property  be  not 
American,  and  insured  in  this  country,  an  interested  policy, 
if  such  could  be  justified,  would  dictate  an  opposite  rule  of 
decision,  and  lead  to  protect  the  American  insurer  against 
the  foreign  owner,  and  thus  determine  the  question  against 
the  insured. 

Again,  if  the  property  be  American,  and  insured  abroad, 
the  remedy  is  placed  beyond  the  reach  of  our  laws,  and  it 
would  be  a  vain  presumption  in  the  courts  of  this  or  any 
other  country  to  attempt  to  prescribe  a  rule  for  foreign  tri- 
bunals. But  I  dismiss  this  topic  as  unconnected  with  the 
merits  of  the  question.  Opinions  founded  on  policy  are 
necessarily  various  and  fluctuating,  and  ought  never  to 
actuate  a  court  of  justice.  The  question  in  every  instance 
must  depend  on  its  intrinsic  merits  arising  from  the  nature 


245 


CASES  IN  ERROR  IN  THE 


Vandenheuvel 

v. 

United  Insur. 

Company. 


ALBANY,     of  the  contract  and  the  general  law  of  insurance,  unless  re- 
strained by  positive  regulations. 

In  this  view  of  the  subject,  the  judicial  determinations  of 
courts  in  different  countries,  as  well  as  the  opinions  of  in- 

—"— * dividuals,  may  differ,  but  that  difference,  I  apprehend,  can 

never,  as  has  been  imagined,  become  a  matter  of  national 
concern.     The  regular  administration  of  justice,  when  con- 
*  246  ducted  with  good  *faith,  can  never  implicate   the  govern- 

ment with  respect  to  foreign  nations  ;  and  whatever  rule 
may  be  established  on  this  occasion,  it  can  only  be  consi- 
dered as  affecting  the  rights  of  our  own  citizens  ;  as  exist- 
ing between  them  solely.  If  foreigners  should  at  all  be 
interested,  it  must  happen  in  consequence  of  their  voluntary 
act  to  seek  insurance  here,  and  they  cannot  complain  of  the 

conduct  of  our  courts,  if  they  receive  the  same  measure  of 

justice  which  is  administered  toothers.  I  therefore  equally 
lay  out  of  view  every  argument  derived  from  this  source. 
It  is  true  there  may  be  cases  to  interest  the  government  in 
behalf  of  its  citizens.  When  losses  are  sustained  by  the 
unjust  sentences  of  foreign  tribunals,  there  is  no  doubt  but 
the  party  injured  is  entitled  to  apply  to  his  government  for 
redress,  and  that  government,  in  case  of  palpable  injustice, 
has  a  right  to  demand  and  enforce  reparation  from  the  sove- 
reign of  the  aggressor — it  is  even  bound  to  do  so,  or  in  its 
discretion  to  grant  reprisals,  or  an  indemnity  to  the  injured 
party.  It  then,  and  not  till  then,  becomes  a  question  of 
national  concern.  As  such,  the  delicacy  and  importance 
attached  to  it,  as  to  all  national  questions,  would  require  the 
government  to  proceed  with  caution,  and  in  doubtful  cases 
rather  to  presume  that  justice  has  been  done  than  to  im- 
peach the  integrity  of  foreign  courts.  Thus  it  is  held,  that 
it  ought  not  to  interfere  but  in  cases  of  violent  injuries, 
countenanced  and  supported  by  the  sovereign  of  the  aggres- 
sor, and  where  justice  is  absolutely  denied  in  re  minime 
f  Gro.de  Jure,  dubia  by  all  the  tribunals  and  in  the  last  resort,  f  This  is 
sec.  4,  5. 3i  Coli.  tne  language  of  the  most  approved  writers  on  public  law, 
Van  w  258     anc*  **  professed  to  be  the  practice  of  all  civilized  nations, 


STATE  OF  NEW-YORK.  -247 

and  onef  of  those  writers,  perhaps  the  most  eminent  and      ALBANY. 


VatKlenheuvel 


correct,  exemplifies   the  maxim  by  referring  to  the  princi- 
ples  maintained  by  the   British  government   on  a  similar 
occasion.     Hence  it  will  be  admitted,  as  a  general  rule,  that       Company.  ' 
every  government  is  bound  to  respect  the  judicial  decisions  ^ 

of  foreign  courts,  and  in  the  first  instance  to  consider  them  port  on  the 

°  m  Prussian      mc- 

as  just,  and  of  course  generally  conclusive.  But  these  rea-  moriaU 
sons  for  the  rule  are  strictly  applicable  to  the  government 
alone  when  acting  in  behalf  of  its  citizens.  They  cannot 
apply  to  the  conduct  of  our  courts  in  the  ordinary  adminis- 
tration of  justice.  We  actually  see  that  the  courts  of 
France  and  England  differ  on  the  very  question  before  us, 
and  it  has  never  been  deemed  a  subject  of  national  com- 
plaint by  either.  I  therefore  think  that  it  is  not  on  the 
ground  of  national  interference  or  courtesy  that  such  sen- 
tences in  our  courts  are  held  to  be  conclusive  ;  their  con- 
clusive quality  depends  on  other  principles. 

1st.  As  between  the  insurer  and  insured,  in  case  of  a 
representation  or  warranty  of  neutral  property,  I  think  a 
condemnation  in  a  foreign  court  of  admiralty,  when,  founded 
on  the  want  of  neutrality,  operates  definitively  against  the 
insured  according  to  the  terms  and  effect  of  the  contract 
itself.  During  the  existence  of  a  maritime  war,  the  state 
of  commerce  is  necessarily  more  or  less  precarious.  Neu- 
trals are  not  exempt  from  this  inconvenience,  but  neutrality, 
if  respected,  affords  a  great  advantage.  The  neutral  mer- 
chant, when  he  effects  an  insurance,  may  either  retain  the 
benefit  of  his  neutrality,  or,  if  diffident  of  its  security,  he 
may  relinquish  it,  and  specially  insure  his  property  against 
every  possible  loss.  If  he  *insure  the  property  as  neutral, 
he  thereby  signifies  his   intention  to  avail  himself  of  his  #  248 

neutrality,  and  of  course  will  pay  a  less  premium  ;  but  in 
doing  this  it  must  follow  that  he  takes  upon  himself  the  risk 
of  that  neutrality.  He  thus  far  divides  the  risk,  and  is  to  be 
considered  his  own  insurer.     He  cannot,  by  paying  a  less 

3  D 


248 


CASES  IN  ERROR  IN  THE 


ALBANY. 

Vandenheuvel 

v. 

United  Insur. 

Company. 


*  249 


premium,  enjoy  the  benefit  of  his  neutrality  and  at  the  same 
time  the  benefit  of  an  insurance  for  the  want  of  it. 

It  is  obvious  that  every  such  representation  or  warranty 
is  made,  not  with  a  view  to  an  examination  of  the  fact  in 
our  own  courts,  but  in  reference  to  the  parties  at  war,  and 
to  the  danger  of  capture  and  condemnation  abroad.  This 
is  the  direct  object  of  the  stipulation.  It  cannot  be  limited 
to  the  naked  position  that  the  property  is  in  fact  neutral. 
It  may  be  so  and  yet  possess  none  of  the  indicia  or  evi- 
dences of  neutrality.  These  evidences,  it  is  not  denied,  the 
insured  undertakes  shall  accompany  it,  and  I  think  he  equally 
undertakes  that  it  shall  enjoy  the  privileges  of  neutrality. 

There  appears  to  me  no  room  for  the  distinction  that  the 
insured  engages  to  furnish  the  evidences  merely,  and  at  the 
same  time  not  to  maintain  his  neutrality  when  it  may  be 
called  in  question.     If  the  proper  evidences  accompany  the 
subject,  it  is  not  legally  to  be  presumed  that  its  neutrality 
cannot  be  maintained.     Whatever  abuses  may  occasionally 
be  committed  we  cannot  act  judicially,  nor  suppose  the  par- 
ties to  have  acted  on  the  presumption  of  injustice  in  foreign 
courts.     The  idea  is  inadmissible  when  applied  to  the  courts 
of  a  civilized  nation,  and  if  contemplated  by  the  parties 
ought  at  least  to  have  been  *made  the  subject  of  a  special 
provision  in  the  contract.     No  doubt  the  underwriter  may, 
by  a  special  insurance,  and  the  admission  of  a  particular 
mode  of  proof,  make  himself  liable  even  for  the  unjust  sen- 
tences of  foreign  courts ;  but  he  ought  never  to  be  held 
liable  for  such  sentences   when  proceeding  on  the  very 
ground  assumed  by  the  insured  himself.     If  neutrality  can 
be  called  a  risk,  that  risk  is  necessarily  implied  in  the  war- 
ranty ;  and  the  insurer,  by  the  contract,  is  liable  only  to  the 
remaining  perils  incident  to  the  subject,  allowing  it  to  be- 
neutral  and  to  preserve  that  character.     He  engages  for 
nothing  more ;  and  his  premium  must  be  deemed  propor- 
tioned to  those  perils  only.     The  effect  of  the  representa- 
tion or  warranty,  can,  I  think,  on  the  face  of  the  contract 
itself,  admit  of  no  other  interpretation* 


STATE  OF  NEW-YORK.  249 

If  this  reasoning  be  correct,  it  follows,  that  the  insured,      albaxy. 

having  represented  or  warranted   the  subject  to  be  neutral,      v^^x*" 

'  6       r  ,  -     -  ,r  Vandenheuvel 

can   never,  on  the   terms  of  the  contract   itseU,    recover  T. 

against  the   insurer  when  it   appears  to  have  been  con-    °cSpSjIr' 

demned  on   a  ground  which  denies  its  neutrality.     It  is 

immaterial,  in  this  view  of  the  subject,  whether  the  con- 
demnation be  just  or  unjust ;  it  is  sufficient  if  it  proceed 
on  the  want  of  neutrality. 

2.  The  question  in  the  English  courts  does  not  appear  to 
have  been  examined  in  this  light.  They  have  been  content 
to  apply  to  the  decisions  of  foreign  courts  of  admiralty,  a 
principle  which  has  long  been  received  and  adopted  in  their 
domestic  courts.  They  place  them  on  the  same  footing, 
and  consider  the  conclusiveness  of  their  sentences  as  ne- 
cessarily resulting  from  the  right  of  jurisdiction.  In  relation 
to  their  own  courts  the  lule  has  undoubtedly  been  *long  es-  #  250 

tablished,  both  before  and  since  the  revolution,  and  it  is 
not  confined  to  courts  of  peculiar  or  exclusive  authority, 
but  applies  to  all.  Not  only  the  sentences  or  judgments 
of  their  ecclesiastical  and  other  courts,  where  they  possess 
exclusive  cognisance,  but  the  decisions  of  all  their  courts 
in  cases  where  they  have  concurrent  jurisdiction  are  deem- 
ed to  be  equally  conclusive.  Indeed,  a  contrary  position 
would  involve  the  absurdity  of  a  power  competent  to  de- 
cide, and  at  the  same  time  ineffectual  in  its  decision. 

They  have  also,  in  a  variety  of  cases,  extended  the  rule 
to  foreign  courts  of  a  different  description.     Thus,  a  bill 
to  be  relieved  against  actions  of  trespass  for  seizing  goodsf  jj  ghCtelV. 
in  an  island  of  Denmark,  was  dismissed  in  chancery,   be- 
cause sentence  was  given  in  the  court  of  Denmark  on   the 
seizure.     So  in  case*  of  a  bill  of  exchange,  the  acceptance  *  «  Fjjjir.  g 
of  which  was  vacated  in  a  court  of  Leghorn,  Lord   Chan-  ^  a  *g 
cellor  King  held  not  only  that  the  cause   was  to  be  deter-  ner>  (ir20.} 
mined  by  the  lex  loci,  but  the  acceptance  having  been  vaca- 
ted by  a  competent  jurisdiction,  he  thought  the   sentence 
conclusive,  and  that  it  bound  the  court  of  chancery  m^- 

«land.  So  by  Lord  Ilarchvkke*  if  a  marriage  be  declared  JU*  159. 


250 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Vandenhcuvcl 
v. 

United  Insur. 
Company. 


*  251 


valid  by  the  sentence  of  a  court  in  France  having  proper 
jurisdiction,  it  is  conclusive,  and  he  held  "that  this  was 
so,  although  in  a  foreign  court,  by  the  law  of  nations  ;  for 
otherwise  the  rights  of  mankind  would  be  very  precarious 
and  uncertain. 

This  doctrine  applies,  with  peculiar  force  to  the   senten- 
ces of  courts  of  admiralty  in  relation  to  prize,  and  of  every 
court  proceeding  on  the  general  law  of  nations  as  the   basis 
of  its  authority.     While  the   capture    *of  enemy-property 
is  admitted  to  be  the  right  of  a  belligerent  party,  the  insti- 
tution of  courts  to  try  the  validity  of  such  captures   must 
also  be  admitted.     1  hey  exist  in  every  country,   and  are 
established  in  our  own.     The   objects  of  their  institution 
are  every  where  the  same.     They  are  invested  with  similar 
powers,  pursue  the  same  principles,  and  profess  to  be   go- 
verned by  the  same  system  of  laws,  unconnected  with  the 
municipal  regulations  of  any  country.     In  this  manner  they 
form  a  separate  and  independent  branch  of  judicature,  and 
although  uncontrolled  by  a  common  superior,    their  deter- 
minations, while  they  act  with  good  faith,  will  generally  be 
uniform  and  consistent.     Considering  them   in  this  light, 
acting  on  the  same  principles,  and   governed   by  the  same 
law,  they  come  within   the  reason  of  the  rule  which  is   ap- 
plied to  domestic  tribunals  of  concurrent  jurisdiction,  and 
their  decisions  ought  to  possess  equal  force    and  autho- 
rity. 

But  another  principle  of  English  and  American  jurispru- 
dence arising  from  the  nature  of  the  subject,  and  the  sys- 
tem of  our  courts,  appears  to  me  strongly  to  enforce  this 
doctrine.  The  question  of  neutrality  is  involved  in  the 
general  question  of  pri'ze  ;  it  is  a  necessary  incident,  and 
the  want  of  neutrality  forms  the  principal  ground  of  cap- 
ture and  condemnation.  It  is  a  settled  maxim  that  the 
courts  cf  common  law  have  no  jurisdiction  on  the  ques- 
tion of  prize ;  it  may  collaterally  arise,  but  ex  directo  it  is 
not  within  their  cognisance  ;  it  belongs  solely  and  exclu- 
sively to  the  courts  of  admiralty  as  courts  of  prize.     This 


STATE  OF  NEW-YORK. 


251 


Company. 


*  252 


is  established  by  a  current  of  authorities  both  ancient  and    K^*^/ 
modern,  and  the  reasons  on  which  they  are   #founded  are    vandenheuvel 
satisfactory  and  conclusive.     If  then  the   courts   of   admi-    United' Insur 
ralty  have  exclusive  jurisdiction  of  the  principal  question 
of  prize,  which  necessarily  includes  that  of  neutrality,  and 
the  courts  of  common  law  have  no    jurisdiction,  it  must 
follow  that  the  decisions  of  the  former  cannot  be  reviewed 
by  the  latter,  and  that  whenever  they  occur  directly  or  col- 
laterally,  they  must  like  the  judgment  of  other  courts  of  pecu- 
liar jurisdiction,  be  considered  as  conclusive.  If  they  were  al- 
lowed to  be  reviewed,  in  what  manner  could  we  ascertain  the 
merits  of  the  former  decision  ?    Is  the    same  evidence  in 
our  power,  or  in  the  power  of  the  parties  to  obtain  ?    The 
insurer  is  a  stranger  to  the  whole  transaction  ;  the  circum- 
stances are  unknown  to  him  ;  the  proofs,    if   not   detained 
abroad,  are  in  the  hands  of  his  adversary  ;  they  are    gene- 
rally concealed,  or  may,   with  the   greatest  ease,  be   sup- 
pressed.    How  could  he  compel  their  production,  or  bring 
to  light  the  merits  of  the  case  ?  To  avoid  these  difficulties 
are  we  to  be  governed  by  the  written  depositions  taken  in 
the  admiralty  abroad,  or  could   they   be  received  as  evi- 
dence ?  It  is  well  known  that  the  rules  of  evidence  in  those 
courts  are  different  from  our  own.     By  what  rules  are   we 
to  be  governed  ?  If  exclusively  by  our  own,  the   result  in 
our  courts  may  differ,  and  yet  both   judgments  as  to   the 
evidence  on  which  they  are  founded  be  equally  just.      Al- 
lowing even  that  the  insured  engages  merely  to  furnish  the 
evidence  of  this  neutrality  in  foreign  courts,  that  evidence 
must  surely  be  understood  to  be  of  a  nature  usually  recei- 
ved and  demanded  in  those  courts  ;    for   it   is    there   only 
that  it  can  be  material.     The  engagement    relating  to  such 
evidence  of  course  excludes  *the  idea  of  a  decision  upon 
anv  other,  and  the  interference  of  a  court  of  common  law, 
requiring  a  different  mode  of  proof,  and  acting  on  differ- 
ent principles,  would  contravene  one  of  the   direct  objects 
of  the  stipulation.     In  every  shape,    therefore,   in  which 
this  subject  can  be  viewed,  insuperable  difficulties  present 


*  25: 


2*3  CASES  IN  ERROR  IN  THE 

ALBANY,  themselves,  and  evince  the   propriety  of  considering  the 

V^'^"N-'  foreign  sentences  as  final. 

Vawlenlieuvel  .                                     ,                  .  , 

t.  In  England  this  question  is  at  rest  by  direct  decisions  on 

Company.  the  point,  but  these  decisions  were  principally  made  during 


""  the  period  of  ovir  revolution,  or  subsequent  to  it ;  they  pos- 

sess, therefore,  no  conclusive  authority,  but  under  similar 
circumstances  are  to  be  regarded  as  we  regard  the  decisions 
of  the  courts  of  all  enlightened  nations,  high  evidence  of 
the  law  on  the  subject. 

The  cases  in  the  English  courts  previous  to  the  revolu- 
tion are,  however,  not  wholly  silent  on  the  question  j  so  far 
as  they  relate  to  the  general  principle  that  the  sentence  or 
judgment  of  any  court  of  competent  jurisdiction  is  to  be  re- 
ceived as  conclusive,  they  have  already  been  noticed. 

There  are  some  which  immediately  apply  to  the  sentences 
of  foreign  courts  of  admiralty.     The  first  in  which  the  ef- 
fect of  such  sentences  appears  to  have  been  immediately 
1 1  Vem.  2«.  2  considered,    was   the  case  of  Newland  v.  Horseman,\  in 
(1681.)  '  chancery.     That  was  on  a  question  of  freight,  which  had 

been  tried  in  the  court  of  admiralty  at  Barcelona,  where  an 
interlocutory  judgment  was  given.  Lord  Chancellor  Not- 
tingham declared,  that  he  would  not  slight  their  proceed- 
ings beyond  sea,  and  if  the  damages  had  been  there  ascer- 
tained, or  a  peremptory  sentence  given,  the  same  should 
have  concluded  all  parties.  *The  next  is  the  case  of 
*  Carth.  32.  2  Hughes  v.  Cornelius^,  in  which,  during  a  war  between 
(1689)°  France  and  Holland,  an   English  ship  was  taken  by  the 

French  under  colour  of  being  Dutch^  carried  into  France 
and  there  condemned  by  the  court  of  admiralty  as  a  Dutch 
prize.  Afterwards  an  Englishman  bought  this  ship,  and 
brought  her  into  England,  where  the  right  owner  instituted 
an  action  of  trover  for  the  ship  against  the  purchaser.  This 
matter  being  found  specially,  the  defendant  had  judgment, 
"because  the  ship  being  legally  condemned  as  a  Dutch 
prize,  this  court  will  give  credit  to  the  sentence  of  the 
court  of  admiralty  in  France,  and  take  it  to  be  according  to 
right,  and  will  not  examine  their  proceedings,  for  it  would 


STATE  OF  NEW-YORK.  254 

be  very  inconvenient  if  one  kingdom  should,  by  peculiar      ALBANY, 
laws,  correct  the  judgments  and  proceedings  of  the  courts    ^22* 
of  another  kingdom."     In  the  Theory  of  Evidence,}  a  book    ^  *r 
considerably  ancient,  it  is  stated,  that  "  in  an  action  on  a       Company, 
policy  of  insurance,  with  a  warranty  that  the  ship  was  f  An  £T]~~ 
Swedish,  the  sentence  of  the  French  admiralty  condemning  P™ted  in  i76t. 
the   ship  as  English  property  was  held  to  be  conclusive.''^  *  Bik  24*. 
The  same  case  is  repeated  in  hcec  verba  by  Mr.  Buller,  in 
his  Nt»  Prius,  and  has  received  the  sanction  of  his  name. 
He  cannot  be  understood  to  refer  to  the  case  of  Hughes  and 
Cornelius,  as  has  been  suggested,  for  that  was  not   of  a 
Swedish  ship,  nor  on  a  policy  of  insurance.     There  is  still 
another  case§  of  Fernandez  v.  De  Costa,  in  4  Geo.  III.  be-  $  park,  178.  Sd 

,  _    .     _   .  .  i-iL  edition,  not  elsc- 

fore  Lord  Mansfield,  at  Nm  Pnus,  in  which  there  was  a  where  reported. 
warranty  that  the   ship  was   Portuguese,  and   being  con- 
demned as  not  being  Portuguese  in  the  admiralty  courts  of 
France,  the  sentence  of  condemnation  appears  to  have  been 
considered  as  *decisive  in  favour  of  the  insurer.     In  this  *  255 

case,  it  seems,  the  law  was  received  to  be  settled  as  to  the 
effect  of  the  sentence,  and  the  inquiry  was  confined  to  as- 
certain the  ground  on  which  it  went. 

In  answer  to  the  two  former  of  these  cases  a  distinction 
has  been  taken  between  the  direct  and  collateral  effects  of  a 
foreign  sentence,  that  it  is  conclusive  only  as  to  the  trans- 
fer of  property  for  the  benefit  of  all  claiming  under  it,  but 
not  so  as  to  collateral  parties.     I  do  not  perceive  the  force 
of  this  distinction.     If  well  founded  it  appears  to  me  to 
operate  in  favour  of  the  insurer ;  the  insured,  the  professed 
owner  of  the  property,  must  certainly  be  a  direct  party  to 
the  sentence,  if  any  one  is  a  party ;  he,  therefore,  if  any 
one,  must  be  concluded.     Besides,  from  the  nature  of  the 
proceedings  in  courts  of  admiralty,  which  are  in  rem,  all 
persons  are  considered  as  bound.     The  forms  and  manner 
of  proceeding  in  those  courts  are  founded  on  the  idea  of 
notice  to  all  the  world,  and  the  operation  of  their  sentence* 
is  deemed  to  be  equally  extensive.     The  distinction  now 
attempted,  I  do  not  find  to  be  supported  by  any  authority 


255  CASES  IN  ERROR  IN  THE 

ALBANY.      either  before  or  since  the  revolution.     Indeed,  in  England, 

k*^~>r^a0'      the  contrary  rule  prevails  both  with  respect  to  their  domes- 

i  ^  iei        ^  ^^  ^  foreign  courts.     It  is  general,  that,  "  whenever 

■^Comtaivr.^     a  matter  comes  to  be  tried  in  a  collateral  way,  the  decree, 

1  sentence,  or  judgment  of  any  court,  ecclesiastical  or  civil, 

having   competent  jurisdiction,  is   conclusive   evidence  of 

f  Them  of  Ev.  such  matter."f     It  is  not  material  that  the  parties  to  the 

jLL ^762,  76s!  suit  should   have  been  parties  to  the  sentence ;  die  only 

there  dwTI  qualification  of  the  rule,  I  believe,  is  to  be  found  in  Prudham 

Black  Rep  977.       Philips!  where  Chief  Justice  Wilks.  in  the  case  of  a  judg- 

$  Amb.  1 63.  r"*r  •»  ... 

ment  alleged  to  be  obtained  by  fraud  in  the  ecclesiastical 
*  256  *court,  took  a  distinction  in  favour  of  a  stranger,  who  could 

not  come  in  and  vacate  or  reverse  the  judgment,  and,  there- 
fore, must  of  necessity  be  permitted  to  aver  the  fraud  ;  but 
he  held  that  the  party  to  the  suit  was  bound  by  the  sen- 
tence, in  relation  to  all  other  persons,  and  could  not  give 
evidence  of  the  fraud,  but  must  apply  to  the  court  which 
pronounced  the  sentence,  to  vacate  the  judgment.  It  is, 
therefore,  always  sufficient,  if  the  one  against  whom  the 
sentence  is  offered,  was  a  party. 
§  Doug.  544.  I  forbear  particularly  to  examine  the  subsequent  case3,§ 

Park,  559.  361,  r      ,     ;  '        .  ,  .   ,      .,  , .     Uj.  ,, 

362— three  ca-  during  our  revolution,  and  since,  which,  "  anv  doubt  could 
before  exist,  have  unequivocally  settled  the  law  in  England, 
The  principle  on  which  they  are  founded,  is,  I  think,  suffi- 
ciently supported  by  the  antecedent  cases.  The  English 
courts  appear  to  have  viewed  those  cases  in  the  same  light, 
and  without  treating  the  question  as  res  Integra  have 
adopted  the  rule  they  prescribe.  Indeed,  from  the  time  of 
Charles  II.  to  the  present  period,  it  appears  to  have  re- 
ceived a  steady  determination  by  the  highest  authorities  in 
their  courts.  With  them  it  seems  never  to  have  been  much 
questioned,  and,  I  conceive,  the  law  with  us  must  be  deemed 
to  be  equally  settled.     It  may   be   added,   that  the   same 

%  2  Dal?.  point  arose  in  Pennsylvania^  and,   although  not  directly 

decided,  Judge  Shippen  inclined  to  consider  the  foreign 

. .  _      .        sentence  as  conclusive  against  the  insured, 

457    to   464.—       In  France,  the  law  is  undoubtedly  otherwise  settled. ff 
Val.    112.     art.   _  ,  ,,,.«-,  i  '         •     i 

48.      See  also  Their  courts  have  adopted  a  different  rule  at  an  early  period, 

Jiocc.  ft.  54. 


STATE  OF  NEW- YORK. 


256 


and  the  authorities  on  which  they  proceed,  in  cases  of  new 
impression,  would  merit  great  attention  and  respect ;  but 
independent  of  the  circumstance  that  they  confer  no  obli- 
gation on  our  *courts,  I  think  they  do  not  comport  with  the 
sound  interpretation  of  the  contract,  nor  with  the  system  of 
our  iurisprudence.  The  English  courts,  on  questions  of 
commercial  law,  are  to  be  regarded  as  at  least  equally  en- 
lightened and  correct,  and  their  authority,  before  the  revo- 
lution, repeatedly  sanctioned  and  confirmed  by  subsequent 
determinations,  imposes  an  obligation  which  the  former  do 
not  possess. 

In  every  light,  therefore,  in  which  I  have  been  able  to 
view' the  subject,  I  am  of  opinion,  that  the  foreign  sentence 
ought  to  be  deemed  conclusive  against  the  plaintiff's  right 
to  recover  on  the  policy. 

1.  From  the  nature  and  import  of  the  contract  itself,  by 
which  I  consider  the  insured  to  have  guarantied  his  neu- 
trality, and  undertaken  to  maintain  it,  and,  of  course,  liable 
to  all  the  perils  attending  it. 

2.  Because  the  condemnation  is  to  be  considered  as  con- 
clusive evidence  of  the  want  of  neutrality,  it  being  the  sen- 
tence of  a  court,  net  only  of  a  competent  but  exclusive 
jurisdiction  on  the  subject. 

Kent,  J.  This  cause  is  on  a  policy  upon  the  cargo  and 
freight  of  the  ship  Astrea. 

The  facts  are  these. 

The  voyage  was  from  Nexv-Tork  to  Corunna,  in  Spain, 
and  the  ship  was  described  as  the  good  American  ship  the 
Astrea ;  and  previous  to  the  time  of  signing  the  policy,  the 
plaintiff,  in  a  written  application  for  that  purpose,  to  the 
respective  defendants,  represented  the  property  to  be  his 
own.  The  ship  was  captured  on  her  voyage  by  a  British 
frigate,  carried  into  Gibraltar,  and  by  the  court  of  vice-ad- 
miralty there,  the  ship  and  cargo  were  condemned  as  lawful 
prize,  as  belonging,  at  *the  time  of  the  capture,  to  Spain, 
er  to  persons,  being  subjects  of  the  king  of  Spam,  or  inha- 

3  £ 


ALBANY. 


Vandenlieuvd 

X, 

United  Insur. 

Comi»any. 


*  257 


*  256 


258  CASES  IN  ERROR  IN  THE 


ALBANY.      biting  within  the  territories  of  the  king  of  Spam,  enemies  to, 
v-^v^Ste/      the  king  of  Great  Britain. 

Yiuiiienheuvel  °  .  .  ».     «       i  .     ■»    .    «       .« 

v.  If  the  plaintiff  is  not  to  be  adjuuged  concluded   by  the 

CompaJyT'    sentence,  it  is  then  admitted  in  the  case,  to  be  a  fact,  that 

TT the  ship  and  cargo  were  the  plaintiff's  property. 

The  plaintiff  was  born  a  subject  of  the  United  Netherlands, 
and  became  a  citizen  of  the  United  States,  on  the  3d  day  of 
June,  1793,  and  has  since  resided  in  the  city  of  New-York. 
Upon  these  facts,  the  whole  question  between  the  parties 
turns  upon  the  effect  of  the  sentence  of  condemnation.  If 
that  is  to  be  deemed  conclusive  proof  of  the  facts  therein 
stated,  the  policy  is  void,  by  reason  of  a  breach  of  warranty, 
and  by  reason  of  a  material  misrepresentation,  which  led  the 
underwriters  to  compute  the  risk  upon  circumstances  which 
did  not  exist. 

The  sentence  substantially  falsifies  the  representation,  for 
the  persons,  stated  in  the  sentence  as  owners  of  the  property, 
and  the  plaintiff,  were  evidently  understood  and  intended  to 
be  different  persons. 

After  the'  opinion  which  I  have  already  given  upon  the 
ilanuaryMW.  question,  in  the  cases  of  Ludlow  and  Dalej  and  of  Goix 
4  jpril,  l'soo.      and  Low,%  I  might  well  be  excused  from  entering  again 
upon  the  subject,  unless,  in  the  mean  time,  I  had  seen  suffi- 
cient reason  to   change  that  opinion.     The  question  has, 
indeed,  been  since  presented  in  a  way  the  most  propitious 
to  a  liberal  reconsideration  of  its  merits.     The  authorities, 
and  the  principles  they  contain,  have  been  examined  at  the 
f  259  bar   *with  a  diligence  and  ability  that  have  greatly  aided 

our  researches,  and  thrown  light  on  the  avenues  to  truth. 
It  seems,  then,  in  a  degree  due  to  the  occasion,  to  the 
elaborate  and  anxious  care  which  has  been  bestowed  on  the 
subject,  that  I  should  once  more,  but  very  briefly,  and  with- 
out recapitulating  what  I  have  before  said,  take  some  fur- 
ther notice  of  the  argument. 

The  true  point  in  controversy  is  not  what  ought  to  be, 
but  what  in  fact  was,  the  legal  effect  of  a  foreign  sentence 
of  condemnation,  in  a  case  like  the  present,  by  the  common 


STATE  OF  NEW-YORK.  25? 

law,  as  understood  and  settled  when  our  revolution  began.      ALBANY: 
I  shall  confine  myself  in  this  opinion,  to  the  examination  of    v!I!!Sheu^l 

this  Single  point.  United 'insur. 

Let  us  first  inquire  what  is  the  effect  of  a  domestic  judg-      Company. 
ment. 

It  is  laid  down  as  a  general  rule.f  that  whenever  a  matter  f  Butler's. X.  P. 

°  ,  ,      r     i  c  '-'•iV-W.    Jimb. 

comes  to  be  tried  in  a  collateral  wav,  the  final  sentence  of  761.    Freeman, 

,  ,      •  >Si.       .Sir.    733. 

any  court,  having  competent  authority,  is  conclusive  evi-  35^  Ln.tv 
dence  of  the  matter  so  determined,  in  all  other  courts,  hav-  Tracts> 465469- 
ing  concurrent  jurisdiction ;  for,  it  were  very  absurd  that 
the    law  should  give  a  jurisdiction,    and    yet    not  suffer 
what  is  done  by  force  of  that  jurisdiction  to  be  full  proof. 

It  has,  however,  been  made  a  doubt  by  some,J  whether  *  *ff%-*77-   9 
such  sentences  upon  jurisdictions,  having  concurrent  autho- 
rity, be  conclusive,  or  only  prima  facie  evidence  of  the  fact, 
although  I  think  the   better  opinion  is   in  favour  of  their 
conclusive  effect* 

But  if  a  matter  belongs  to  the  jurisdiction  of  one  court  so 
peculiarly  as  that  other  courts  can  only  take  conusance  of 
the  same  subject  indirectly  and  incidentally,  the  rule  is  then 
more  extensive  and  *unequivocal.f     The  latter  courts  are  *  260 

,     7  Har grave  s 

bound  by  the   sentence  of  the  former,  until  it  be  reversed,  jMXi!  Tracts, 

.  .     .       ,.  -c   ■     u       r        .1      *5«.    457.    470. 

although  it  be  in  a  suit  in  divcrso  intuitu,  it  it  be  directly  477 
determined,  and  must  give  credit  to  it  universally,  and 
without  exception. 

This  rule  has  been  illustrated  in  the  case  of  sentences  in 
the  ecclesiastical  courts  touching  marriages  and  wills  ;  in 
the  exchequer  touching  the  condemnation  of  forfeited 
goods ;  and  in  the  admiralty  touching  prizes,  and  in  all  of 
which  cases,  those  courts  have  exclusive  jurisdiction. 

In  respect  to  the  ecclesiastical  courts,  the  authorities  are 
numerous,  and  have  spoke  a  uniform  language  from  the 
time  of  Lord  Coke  to  the  present  day.  In  two  cases,  to  be 
found  in  his  reports^  the  judges  determined  that  they  UCe.W.%.7 
were  bound  (although  it  was  even  against  the  reason  of  the 
law)  to  give  faith  and  credit  to  the  sentences  of  the  eccle- 
siastical courts,  for  cuilibet  in  sua  arte  perito  est  credendum; 


260  CASES  IN  ERROR  IN  THE 


Vandenheuvel 


ALBANY.  and  that,  if  the  ecclesiastical  judge  showeth  cause  of  his 
sentence,  yet,  forasmuch  as  he  is  judge  of  the  original  mat- 
ter, they  shall  never  examine  the  cause  whether  it  be  true 

United  Insur. 
Company.        Or  not. 

———————        All  the  subsequent  cases  say  the  same  thing.t 

f  2  Lev.  14.     1 

Freeman,  83.  This   conclusive   effect  of  the  sentences  of  the  spiritual 

Ccirth.    225.      1 

#aM\  290.  skin,  courts  applies  to  strangers  as  well  as  to  parties  and  privies. 
mu  Amb.m'.  They  are  conclusive  evidence  of  the  fact  against  all  the 
TVarts^from  world.J  In  one  of  the  cases  from  Co&e,§  and  in  the  case  of 
A5j/°t7%7  Hatfield  and  Hatfield f\  which  was  finally  determined  on 
47i.  Bui.J\r.P.  appeal  in  the  house  of  lords,  in  1725,  the  sentence  was  held 
§  4  Co.  29.  a.  binding  on  strangers.  In  a  case  before  Lord  Hardwicke, 
P.  &$&■&  C.'  and  in  a  case  before  Chief  Justice  Wiliest  strangers  were 
jinJVfa3°'  ^allowed  to  use  the  sentence  against  those  who  were  parties. 
*  261  The  Same  doctrine  is  established  in  respect  to  condemna- 

tions in  the  exchequer.  This  fully  appears  from  the  case  of 
1 2  Black.  Rep.  Scott  and  Shearman^  in  which  it  was  held  by  Mr.  Justice 
977  •  Blackstone,  in  a  very  elaborate  argument,  and  in  which  all 

the  court  concurred,  that  the  condemnation  in  the  exchequer 
was  conclusive  ;  not  only  in  rem  but  in  personam ;  not  only 
in  the  property  vested  in  the  crown,  but  as  to  every  other 
collateral  remedy  ;  not  only  as  to  the  party  to  the  suit  but 
as  to  the  right  owner,  although  no  party,  and  against  all  the 
world.     The  seizure  itself  was  held  to  be   notice  to  the 
tTliis  law,    as  owner.J     The  law  gives  implicit  credit  to  the  judgments  of 
ih-m^iburnj.  competent  courts,  and  it  was  afterwards  observed  by  Chief 
m>  Justice  De  Grey,  that  the  decision  in  that  cause  had  been 

§  S  Black.  Hep.  the  uniform  law  for  above  a  century.§ 
U76-  It  seems  to  be  every  where  taken  for  granted,  that  the 

TT  i  Show.  6.    3  sentences  of  admiralty  courts  are  equally  finaLfl 
Uai. '  467.'"* 2       The  rule,  then,  I  have  mentioned  in  respect  to  domestic 
f*do  R7$a'  Co-  judgments,  has  received  all  the  sanction  that  a  continued 

'Idiniraf*'?'   JS    tra*n  °f  decislons  Can  PossiWv  Slve  n> 

it.  \\Te  are  next  to  see  whether  the  same  rule,  as  appearing 

to  be  directed  by  the  same  reason,  has  not  been  applied  with 
equal  uniformity  to  foreign  judgments. 


m 


STATE  OF  NEW-YORK.  261 

The  most  ancient  case  to  be  met  with   in  the  English     ALBANY. 
books,  is  the  case  of  Hughes  and  Cornellus.'\     Although  the    ^J/,^^ 
special  verdict  in  that  case  falsified  the  sentence  of  con-    UnUJInsur> 
demnation  in  the  French  admiralty,  yet  the  court  admitted       Company. 
the  sentence  to  be  true  ;  and  although  the  suit  was  trover,  +  Raxjrn,  473. 
in  which,   nothing  but  *the   direct  effect  of  the  sentence  l^twrj&C. 
came  necessarily  into  view,   yet  the  court,  in  giving  judg-  *  262 

ment,  laid  down  this  general  doctrine,  applicable  equally  to 
collateral  effects,  viz.  That  they  ought  to  give  credit  to 
foreign  sentences  of  admiralty,  and  take  them  to  be  accord- 
ing to  right,  und  not  to  examine  their  proceedings  ;  that  this 
was  agreeable  to  the  law  of  nations,  and  sentences  in  courts 
of  admiralty  ought  to  bind  generally  according  to  that  law  ; 
that  if  the  party  was  aggrieved  he  ought  to  petition  the 
king,  it  being  a  matter  of  government,  and  if  there  appear 
cause,  he  will  instruct  his  liege  ambassador,  and  on  failure  of 
redress,  will  grant  letters  of  reprisal. 

This  decision,  and  the  principle  contained  in  the  judg- 
ment, were  afterwards  cited  and  sanctioned  by  Lord  Holty 
and  again  by  Lord  Hardxvickc,  and,  lastly,  by  professor 
IVooddeson,  in  the  course  of  his  Vinerian  lectures.  J  *  ^S?"£    s 

A  similar  doctrine  has  been  repeatedly  advanced,  and  Woodd.  456. 

whenever  the  occasion   arose.     Instances  of  this  are  to  be 

met  with  in  the  successive  decisions  of  the  chancellors,  Not- 

_,.  ■,    tt      i     •   j    x  §  1  Vern.  21. 

tingham,  King  and  Hardwicke^  3  str.  733. 

In  the  case  of  Gage  and  Bulkeley,^  before  Lord  Hard-  \Jfi$™jmt 
wicke,  Sir  D.  Ryder,  who  was  then  attorney-general,  laid  W. 
down  the  rule  in  its  fullest  latitude,  and  as  being  well  esta- 
blished. He  said  that  foreign  judgments  were  received  in 
England  as  conclusive  evidence,  and  had  the  same  regard 
paid  to  them,  for  the  sake  of  justice  and  public  convenience, 
as  sentences  given  in  the  courts  of  admiralty  or  ecclesiasti- 
cal courts  at  home  ;  and  he  cited  the  case  of  Hamden  and 
The  East-India  Company,  which  was  determined  upon 
appeal  in  the  house  of  lords,  and  on  the  *ground,  that  the 
sentence  of  a  Dutch  admiralty  was  conclusive  evidence,  it 
being  res  judicata,  and  could  not  be  unravelled  or  re- ex- 


263  CASES  IN  ERROR  IN  THE 

ALBANY.       amined.     Although  what  he  said  was  merely  arguendo,  yet, 
^*~*~>*/       coming  from  such  an  eminent  counsel,  and  appearing  to  be 
v.  taken  for  granted  by  the  court,  it  is  pretty  good  evidence  of 

UCiotmpaInyUr'    the  prevailing  sense  on  the  subject. 

Here  we  may  also  notice  the  answer  of  the  judges  (of 

which  Sir  D.  Ryder  was  one)  to  the  Prussian  memorial,  as 
being  a  document  of  very  high  authority,  and  bearing 
101  foi  mid'  on  the  question  before  us.f  It  is  there  stated,  that  prize 
courts  proceed  contrary  to  the  law  of  nations  ;  that  in  every 
country  there  is  a  court  of  review,  to  which  the  parties  who 
think  themselves  aggrieved,  may  appeal ;  that  if  no  appeal 
be  offered,  it  is  an  acknowledgment  of  the  justice  of  the 
sentence  by  the  parties  themselves,  and  is  conclusive  ;  that 
captures  have  been  immemorially  judged  of  in  that  way  in 
every  country  of  Europe,  and  with  the  approbation  of  the 
powers  at  peace  ;  that  every  other  method  of  trial  would  be 
impracticable  and  unjust,  and  that,  if  prize  courts  proceed 
contrary  to  the  law  of  nations,  and  treaties  in  re  minime 
dubia,  then,  and  not  till  then,  the  neutral  has  a  right  to  com- 
plain. 

This  answer,  and  the  principle  contained  in  the  case  of 
Hughes  and  Cornelius,  may  be  considered  as  a  correct  com- 
mentary on  the  law  of  nations,  relative  to  the  effect  which 
judicial  sentences  in  one  country  are  to  receive  in  the  courts 

%  Grotim,  I  3-  <>f  another.^ 

c.  2.  sec.  s.  Van.       After   such  a  repeated   and  general  recognition   of  the 

I.  2.  sec.  84,  85.  l  r       •  r  •    /f 

Martens,  104.  principle,  we  are  prepared  to  expect  an  application  ot  it  (tor 
Institutes,  vol.  2.  that  is  all  that  is  now  wanted)  to  the  case  precisely  the 
If'  same  with  the  one  before  the  court.     *We  do,  accordingly, 

$  p.  244.  find  it  stated  as  law,  in  Buller's  Nisi  Priusfi  that  in  an  ac- 

tion upon  a  policy  of  insurance,  with  a  warranty  that  the 
ship  was  Szvcdish,  the  sentence  of  a  French  admiralty  court, 
condemning  the  ship  as  English  property,  was  held  conclu- 
sive evidence.  The  same  case  was  previously  stated  in  the 
1  p.  57.  This  Theory  of  Evidence,^  to  have  been  decided,  and  Pari  gives 
u£liaTr6i'.lb'  us  a  particular  report  of  another  decision  of  the  like  kind, 
before  Lord  Mansfield^  at  the  sittings  after  Hilary  term,  4 


STATE  OF  NEW-YORK.  2C4 

Geo.  III.  in  the  case  of  Fernandez  and  Da  Costa.     A  ship      ALBANY, 
was  insured,  and  warranted  a  Portuguese;  she  was  libelled    ^JJ>j2~, 
and  condemned  in  a  French  court  as  not  being  Portuguese,    Unit  J-lnsup> 
and  although  the  plaintiff  gave  partial  evidence  of  her  being       Company. 
Portuguese,  yet,  when  the  defendant  produced    the    sen- 
tence,  it  concluded  the  cause. 

Where  then  can  we  discover  a  doubt,  as  to  what  was  the 
law  at  the  time  of  our  revolution  ?  Upon  what  ground  can 
we  pause  even  to  raise  a  conjecture,  that  the  court  of  king's 
bench,  in  the  case  of  Bernardi  and  Motteuxfi  (being  the  f  Dou^  575. 
first  case  after  the  year  1776,)  created  a  new  rule,  when 
even  the  counsel  for  the  plaintiff,  at  the  very  outset  of  the 
argument,  admitted,  that  if  the  sentence  of  the  French  ad- 
miralty had  proceeded  on  the  ground  of  the  property  not 
being  neutral,  the  plaintiff  would  have  been  concluded. 

Nor  do  I  think  the  English  decisions,  since  the  year 
1776,  are  to  be  thrown  wholly  cut  of  view,  although  they 
are  confessedly  of  no  binding  authority. 

In  addition  to  the  consideration  of  the  well  known   cha- 
racter of  their  judges,  we  are  to  observe  that  their  *tribu-  *  265 
nals  and  ours,  study  and  pursue  the  same  code  of  law  and 
equity,  and  they  certainly  are  not  more  liable  than   we  our- 
selves, to  misapprehend  the  authentic  records  and  oracles  of 
the  common  law.   If  the  question,  therefore,  were  otherwise 
involved  in  doubt,  a  series  of  uniform  decisions  in  the  En- 
glish courts,  for  the  last  twenty  years,  cannot  but  be   consi-     * 
dered,  and  that  too,  without  being  unduly  addicted  jurare 
in  verba  magistri,  as  a  very  sufficient  cause  to  remove  it. J      ***£   ™{t 
Having  thus  ascertained,  at  least  to  my  satisfaction,  that  ™J*]**& 
by  the  law,  as  it  stood  in  1776,  a   sentence   of  condemna-  JJJ^-* 
lion  abroad,  on  the  direct  point  in   question,  is,  in  a  colla-  *fed""£^ 
teral  suit  by  the  insurer,  conclusive  evidence  of  a  breach  of  nm^  5*3, 6«i, 
his  warranty,  so  that  no  evidence  can  be  admitted  to  impeach  < ' £  J,  **"* 
it,  I  have  done  all  that  I  undertook  to  do.  I  might  here  rest 
the  argument.     Whatever  opinion  may  be  entertained  as  to 
the  justice  or  policy  of  the   rule,  is   not  to   the    purpose. 
Our  duty  is,  jus  dicere,  non  jus  dare.     I  may  be  mistaken , 


265  CASES  IN  ERROR  IN  THE 

Albany,  but  it  appears,  however  to  me,  that  all  the  reasons   which 

v^-v->»»/  have  established  the  rule,  relative  to  domestic   courts,  ha- 

V  andenheuvel 

v.  ving  exclusive  jurisdiction  of  a  subject,  apply  with  peculiar 

United  Insur.  r                              ...        , 

Company,  Jorce  to  a  case  like  the  present. 


'  Courts  of  law  are    inadequate  to  determine   the   ques- 

tion of  prize,  and  to  overhaul  the  sentence  is  in  reality  try- 
ing the  question.  The  circumstances  that  go  to  constitute 
prize,  are  oftentimes  complex.  The  property  may  be 
deeply  masked,  the  papers  double,  or  every  requisite  paper 
may  be  regular,  and  yet  the  conduct  of  the  master  such  as 
to  cause  the  property  to  lose  its  privilege  of  neutrality. 
*  266  None  but  *a  court  clothed   with  the   mode  of  proof,  the 

summary  powers,  the  enlarged  discretion  of  a  prize  court, 
can  seize  and  sift  every  circumstance.     The  maritime  law 
of  Europe  has,  therefore,  very  wisely  established  a  pecu- 
liar court,  for  the  exclusive  jurisdiction   of   prize.     It   is 
there  that  the  assured  should  vindicate   his  property,    and 
if  aggrieved,  he  should  carry  his  appeal  to  a   court  of  re- 
view.    There  is  great  weight  in  the  observation,  that   this 
is  the  true  construction  of  the  engagement,  on  the  part  of 
the  assured.     By  representing,  or  warranting  his  property 
to  be  neutral,  the  assured  undertakes,  not  only  that  it  is  so 
in  fatly  but  that  it  shall   be    entitled  to   neutral   privilege, 
f  8  Durnf.  234.  throughout   the   voyage.^     To   construe    the    engagement 
raiity  of  neutra-  t0  be  ^ess  tnan  tnati  IS  m  a  great  degree  to  render  it  idle  and 
the'  "Hh?p8  shall  nugatory*     "  To  implement  this  warranty,"  says   a  very 
maintain  a  neu-  sensible  writer  on  insurance,  (Millar,  p.  496.)  "  the  shin  or 

tral  conduct  and  '    v  '  l  J  * 

not  forfeit  it  du-  goods  must  be  neutral  in   conception   of  that  nation  from 

ring  the  voyage.    °  _  . 

■whom  danger  of  seizure  is  apprehended*  On  such  a  re- 
presentation or  warranty,  the  insurer  lays  out  of  view  the 
risk  of  loss,  by  reason  of  the  non-neutrality  of  the  proper- 
ty. That  risk  the  assured  takes  upon  himself,  and  having 
in  his  hands,  exclusively,  all  the  means  to  do  it,  he  is 
bound  to  make  good  his  averment^  whenever,  and  where- 
ver the  neutrality  of  the  property,  or  its  privilege  as  such, 
is  called  in  question.  If  he  fails  to  do  it,  he  must  bear 
the  loss,  and  if  foreign  sentences  were  liable  to  be  re-exami- 


STATE  OF  NEW-YORK. 

ned  here,  I  should  still  incline  to  think  that  in  the  case   of      ALBANY, 
an  express  warra?ity,  the  assured,    and   not   the    insurer,    v     lenheov^ 
takes  upon  him  the   risk  of    the  condemnation,    right  or  v. 

r  i  i  1.       *  United  Insur. 

wrong.     Whether  that  would  or  would  not  be   the   "*case,       Company. 
on  a  representation  merely,  I  am  not  as  yet  prepared  to  say, 
and,  therefore,  in  those  suits,  where  there  was  no  warranty,  #  26y 

but  only  a  representation,  I  should  choose  to  rest  my  opi- 
nion entirely  on  the  first  ground,  of  the  faith  due  to  the  fo- 
reign sentence. 

The  result  of  my  opinion  accordingly  is,  that  the  plain- 
tiff is  not  entiUed  to  recover  in  this  cause,  beyond  the  re- 
turn of  his  premium. 

On  the  judgment  rendered  in  conformity  to  the  forego- 
ing opinions,  the  now  plaintiff  Vandenheuvel  brought  his 
writ  of  error,  insisting  that  the  judgment  was  erroneous ; 

1.  Because  there  was  no  warranty  in  the  policy,  and, 
therefore,  the  defendants  assumed  every  possible  risk. 

2.  Because  the  order  for  insurance,  if  it  amounted  to  a 
representation,  must  have  been  understood  by  both  parties 
merely  as  a  representation  that  the  property  belonged  to  the 
plaintiff,  not  that  it  was  neutral  or  American. 

3.  Because  the  sentence  of  condemnation  does  not  nega- 
tive the  representation ;  and, 

4.  Because,  if  the  representation  amounted  to  an  explicit 
warranty  of  the  neutrality  of  the  property,  the  jury  have 
found  it  to  be  true,  and  the  sentence  ought  not  to  be  receiv- 
ed as  evidence  to  the  contrary. 

1.  We  say,  there  being  no  warranty  in  the  policy,  the  un- 
derwriter took  upon  himself  every  hazard,  and  particularly 
those  arising  from  the  character  and  quality  of  the  property. 

The  policy  on  record  contains  nothing  like  a  warranty  of  #  2gg 

any  kind.  Mr.  Vandenheuvel  is  not  styled  a  *citizen  of  th- 
United  States  ;  nor  is  there  an  expression  in  it  which  can  be 
tortured  into  an  intimation  of  the  country  or  community  to 
which  he  belonged  ;  he  had  no  doubt  heard  how  extremely 
jealous  our  courts  were  of  foreigners  assuming  the  name  of 
American;  he  also  knew,  probably  by  woful  experience, 

3  F 


268  CASES  IN  ERROR  IN  THE 

ALBANY,      that  many  of  the  West-India  judges,  those  oracles     of  mo* 
^7^^      dern  law,  were  also  of  opinon  that  a  Dutchman  had  no  right 

Vandenheuvel  .     ■  . 

v.  to  expatriate,  even  for  the  purposes  of  commerce ;  it  may 

Company.'    likewise  have  co  me  to  his  ears,  although  he  must  have  been 
"~~  endued  with  more  than   common  intellect  to  comprehend 

its  meaning,  that  a  foreign  sentence,  silent  as  the  tomb, 
would  proclaim  in  loud,  unequivocal  and  conclusive  terms, 
that  he  was  no  American.  With  all  this  information,  well 
calculated  to  inspire  apprehension  and  caution,  he  makes 
the  present  insur  ance.  For  a  moment,  he  is  tempted  Jo 
save  a  part  of  the  premium,  and  warrant  his  property  neu- 
tral: He  has  resided  in  New-York  more  than  five  years; 
his  certificate  of  naturalization  bears  testimony  of  his  citi- 
zenship ;  the  prop  erty  he  knows  to  be  his  own,  and  he  is 
on  the  point  of  callin  g  it  American  in  the  policy.  This  was 
true,  and  would  have  reduced  the  premium  considerably : 
But,  on  furt  her  deliberation,  he  resolves  to  forego  every 
benefit  which  his  naturalization  and  neutral  character  gave 
him,  and  to  pay  a  war  premium  without  the  embarrassment 
of  a  warranty.  The  policy  is  framed  accordingly ;  not  a 
letter  in  it  purports  a  warranty  of  any  kind.  Was  the  in- 
strument then  to  be  our  guide,  as  it  ought  to  be,  we  should 
arrive  at  a  correct  decision  without  difficulty,  and  without 
opposition  from  a  sentence  more  impregnable,  if  possible,, 
than  the  invincible  fortress  whence  it  issued. 
*  26£  *The  policy  being  for  the  benefit  of  every  one  to  whom 

the  property  may  appertain,  would  cover  not  only  his  own 
goods,  but  even  those  of  a  belligerent  merchant :  "  These 
words,"  says  the  learned  Emerigon,  "  comprehend  French- 
men, as  well  as  neutrals.  The  expression  is  general^  and 
such  should  be  its  interpretation,  especially  in  the  present 
state  of  affairs,  {France  being  then  at  war,)  when  it  is  clear 
that  if  the  insurance  had  been  intended  for  a  neutral,  it 
would  have  been  so  declared  in  express  terms;  the  assurers, 
therefore,  he  continues,  have  no  pretext  for  saying  they 
were  deceived."  Val.  Ord.  Mar.  v.  2.  p.  120.  The  un- 
derwriters, in  the  case  Emerigon  is  speaking  of,  complain- 
ed that  they  had  not  been  apprized  of  the  property  belong- 


STATE  OF  NEW-YORK. 


269 


ing  in  part  to  Frenchmen.  This  author,  not  less  celebrated 
for  a  pure  and  unblemished  life,  than  for  his  professional 
labours  and  skill,  evidently  supposes  no  property  in  time  of 
war  should  be  deemed  neutral  unless  expressly  so  stated  in 
the  policy.  Some  judges  in  this  country  have  intimated  an 
opinion,  that  all  property  in  time  of  war  must  be  taken  as 
belonging  to  neutrals,  unless  otherwise  called  in  the  policy- 
Should  this  case  come  to  the  hands  of  any  gentlemen  who 
have  fallen  into  this  error,  the  mischiefs  of  which  to  our 
merchants  surpass  calculation,  I  beg  them  to  peruse  the 
author  just  cited.  If  his  arguments,  in  which  the  vigour  of 
a  great  mind,  and  the  perspicuity  of  a  man  who  fully  un- 
derstands himself,  ever  appear,  are  not  followed  by  convic- 
tion, nothing  I  can  say  will  be  attended  to.  Mr.  Vanden- 
heuvel, neutral  as  he  was,  did  not  think  it  safe  to  pursue 
the  advice  of  this  great  man,  and  describe  himself  and  pro- 
perty as  such.  Whatever  rights  neutrals  have  had  and 
maintained,  Mr.  Vandenheuvel  *knew,  that  at  this  day, 
every  sue  h  pretension  is  abandoned,  and  that  citizens  of 
this  description  are  given  up  by  the  courts  of  their  own  na- 
tion to  be  buffeted  and  plundered  by  the  worse  than  inquisi- 
torial tribunals  of  the  powers  at  war.  In  the  same  case  it 
is  mentioned  that  underwriters  are  bound  to  pay  for  an  un- 
just capture  ;  this  is  common  sense,  and  therefore  we  must 
not  be  surprised  to  find  that  it  was  law  in  the  days  of  Eme- 
ripon.  But  the  plaintiff  recollected,  that  in  the  present  day 
a  rage  for  improvement  pervades  every  rank  in  society  . 
that  not  only  philosophers,  but  ministers  of  justice,  were 
infected  with  the  pernicious  mania;  that  judges  in  England, 
with  not  more  learning  or  industry  than  their  predecessors, 
were  innovating  on  their  venerable  institutions.  He  fear- 
ed, perhaps,  that  the  same  spirit  of  refinement  might  ex- 
tend to  this  side  of  the  Atlantic;  to  be#  safe,  therefore,  in 
every  possible  event,  he  effects  an  open  policy,  unfettered 
with  any  warranty,  stipulation  or  condition  whatever.  But 
even  the  caution  and  sagacity  of  a  Dutchman  cannot  secure 
him  :     He  unfortunately  writes  a  letter,  and  although  this 


ALBANY. 


Vandenheuvel 

v. 

United  Insur. 

Company. 


*  270 


270  CASES  IN  ERROR  IN  THE 


ALBANY,      forms  no  part  of  the  contract,  it  is  now  produced  in  judg- 
wrv">",/      ment  against  him ;  this  weapon  shall  also  be  wrested  from 
am  en  u        ^£  ^j  0f  njs  adversary,  and  employed  in  his  defence. 
UCi0tmpanJUr'    If  the  policy  contains  not  internal  and  satisfactory  evidence, 
>■-•■- that  no  neutrality  was  to  be  warranted,  such  intention  re- 
sults  most  irresistibly  from  this  very  letter,  or  order  for 
insurance  :     This  we  say, 

2.  Amounted  only  to  a  representation  that  the  pro- 
perty belonged  to  Mr.  Vandenheuvel^  not  that  it  was  Ameri- 
can. 

1.  From  the  express  terms  of  the  order. 

2.  From  the  course  of  the  transaction, 

*  2tl  *The  distinction  here  relied  on  between  calling  the  pro- 

perty his  own,  and  calling  it  American^  is  important,  in 
case  this  abominably  wicked  Gibraltar  sentence  is  to  be  en- 
forced against  him.  He  will  therefore  be  permitted  to 
show  not  only  that  a  distinction  exists,  'but  was  intended 
and  understood. 

The  representation  is  that  the  premises  insured  were  the 
property  of  John  C.  Vandenheuvel.  This,  say  the  under- 
writers, and  the  supreme  court,  is  equivalent  to  calling  the 
property  American.  Whence  is  this  inference  drawn  I  Not 
from  the  name  ;  this  is  most  unequivocally  Dutch  ;  not  from 
the  place  of  his  nativity  ;  this  it  is  admitted  was  in  the  Uni- 
ted Netherlands ;  nor  from  his  looks,  every  underwriter  at 
first  sight  would  pronounce  him  a  foreigner ;  nor  from  his 
speech,  for  although  he  speaks  English  very  well,  the  ac- 
cent of  his  mother  country  is  perceptible  in  every  sentence  ; 
nor  could  it  be  presumed  from  his  residence  in  New-York  ; 
this  the  supreme  court  have  said,  in  the  case  of  Campagne 
v.  Deyne,  is  not  worth  a  rush.  Still  less  was  it  to  be  collected 
from  his  naturalization  j  this  Judge  Kellsallhsts  pronounced, 
in  the  case  of  poor  Duguet,  (and  his  sentence  has  also  been 
affirmed,)  a  sin  against  his  natural  allegiance,  and  a  viola- 
tion of  the  rights  of  the  belligerent  parties.  The  truth  is, 
Mr.  Vandenheuvel  did  not  choose  to  say  whether  he  was  a 
subject  of  the  emperor  of  Mrocco>  a  citizen  of  the  JBatavian 


STATE  OF  NEW-YORK.  271 

republic,  or  a  sachem  of  the  Tuscarora  tribe  of  Indians.  This      ALBANY, 
they  they  were  to  guess  at  as  well  as  they  could.     He  knew    ^££^tl 
that  foreign  admiralties  were  in  the  habit  of  metamorphos-    r  j   J-j 
ing  the  national  character  of  a  merchant  ad  libitum ;  but  he       Company. 
had  never  heard  of  their  undertaking  to  change  the  name 
of  an  owner.    He  was  not  afraid,  therefore,  of  their  *saying  *  272 

that  the  property  did  not  belong  to  him.     To  this  he  knew 
the  papers  and  testimony  would    give  the  lie  direct.     He 
only  apprehended  their  calling  him. a  Spaniard,  a  Dutchman, 
or  a  Turk,  as  the  interest  of  the  moment  might  dictate. 
He  therefore  contented  himself  with  saying  that  the  cargo 
belonged  to  himself.     The  light  in  which  he  might  be  re- 
ceived abroad,  was  left  at  the  risk  of  the  underwriters.     It 
requires  uncommon  ingenuity,  according  to  our  doctrine, 
(for  in  respect  to  naturalized  or  resident  citizens,  the  En- 
glish courts  are  infinitely  more  liberal  than  the  supreme 
court,)  to  ascertain  Mr.  VandenheuvePs  national  character. 
His  ancestors  must  have  been  subjects   to  Philip  king  of 
Spain,     Those   who   maintain  the   divine  and  hereditary 
right  of  kings,  and  the  perpetual  and  indefeasible  obligation 
of  natural  allegiance,  may  style  his    ancestors   rebels,  and 
himself  a  Spaniard;  others  may  call  him  a  Dutchman,  be- 
cause he  was  born  a  subject  of  the  prince  of  Orange,  or  as 
the  stadtholder  has  expatriated,  (which  by  the  by,  he  had 
no  right  to  do,  according  to  the  modern  law  of  nations,)  they 
may  think  him  a  citizen  of  the  Batavian  republic.     Others, 
again,  considering  his  oath  of  allegiance  to  this  country,  his 
residence  and  naturalization,  may  be  disposed  to  think,  in 
opposition  to  the  supreme  court,  that  he  is  really  and  truly 
a  citizen  of  the  United  States.     This,  it  must  be  confessed, 
is  a  knotty  point,  and  must  be  left  exclusively  to  the  decision 
of  an  admiralty  judge.     But  with  such  various  pretensions 
why  should  the  underwriters  take  him  for  an  American  ? 
They  had  no  more  right,  from  what  passed,  to  consider 
him  a  citizen  of  this  country,  than  Judge  Morrison  had  to 
pronounce  him  a  Spaniard. 

*3.  From  the  nature  of  the  transaction.  *  273 


273  CASES  IN  ERROR  IN  THE 


ALBANY.  During  a  war,  underwriters  ever   distinguish  between 

v-r"v~N~'      enemy  and  neutral  property  :   For  the  former  they  have  a 

Vandenheuvel     ...  .  ,    ,  ..  .  „    .  ,     '      T       , 

v.  higher  premium,  and  the  policy  is  against  all  risks.     In  the 

Company!1  latter  case,  as  the  premium  is  much  lower,  they  take  care 
■  to  have  the  neutrality  of  the  property  stated  in  the  policy. 
When  this  is  omitted,  the  presumption  is  fair,  that  they 
regard  the  property  as  enemy,  and  receive  a  premium  ac- 
cordingly. Not  an  instance  has  occurred  this  war,  wherein 
an  underwriter  meant  to  insure  neutral  property,  as  such, 
without  its  being  expressly  so  declared  in  the  policy.  If, 
in  this  instance,  the  contract  had  been  intended  to  be  of 
that  kind,  most  certainly  they  would  have  taken  care  the 
policy  should  speak  for  itself.  They  would  not  have  trust- 
ed to  a  slip  of  paper,  which,  by  the  negligence  of  a  broker, 
or  other  casualty,  might  be  lost  or  destroyed. 

Again,  great  injustice  will  be  done  to  Mr.  Vandenheuvel 
by  the  construction  attempted  to  be  put  on  this  contract.  It 
is  become  a  general  practice  with  merchants,  who  warrant 
their  property  neutral,  to  provide,  by  a  proper  clause,  that 
*  a  foreign  sentence  shall  not  preclude  other  proof.  This 
would  have  been  done  here,  if  either  party  had  supposed 
the  goods  American.  From  this  benefit,  the  plaintiff  will 
be  precluded,  and  that  by  the  negligence  of  the  defendants, 
who  should  have  insisted  on  thi3  stipulation,  if  they  intend- 
ed, at  a  future  day,  to  avail  themselves  of  it.  Their  not 
making  this  a  part  of  the  contract  is  a  clear  proof  that  they 
did  not  underwrite  the  property  as  neutral,  and  received  a 
premium  accordingly. 

If  our  interpretation  of  the  order,  which  leaves  no  room 
for  construction,  be  just,  it  follows, 
*  274  *4-  That  the  sentence  of  condemnation  is  not  at  variance 

with  the  representation. 

"  The  property  is  condemned  as  belonging  to  Spain,  or 
to  persons  being  subjects  of  the  king  of  Spain,  or  inhabiting 
within  the  territories  of  the  king  of  Spain,  enemies  to  the 
king  of  Great  Britain." 

6 


STATE  OF  NEW-YORK*  274 

Mr.  Vandenheuvel  has  not  said  he  was  not  a  subject  of  the     Albany^ 
king  of  Spain ;  a  person  may,  by  swearing  allegiance  to  dif-    Yande»"heuvei 
ferent  sovereigns,  become  the  subject  of  several  countries.    UllitJInsur. 
We  have  many  British  subjects  among  us  who  are  Ameri-      Company 
can  citizens,  but  who  would  be  treated  as  traitors  by  the 
mother  country,  if  taken  in  arms  against  it.     So  that,  for 
aught  that  appears,  the  plaintiff  may  have  sworn  allegiance 
to  the  king  of  Spain,  and  yet  the  property  may  fall  within 
the  letter  of  his  representation,  which  only  declares  it  to  be 
his  own.     It  is  admitted  he  was  born  in  Holland,  and  the 
British  courts  of  admiralty,  if  they  govern  themselves  by 
the  decisions  of  our  supreme  court,  would  have  confiscated 
it,  although  he  had  produced  his  letter  of  naturalization. 
It  was,  no  doubt,  to  guard  against  this  very  event,  that  he 
cautiously  avoided  declaring  to  what  country  he  belonged. 
He  knew  he  was  an  American  citizen,  but  he  could  not  tell 
that  foreign  courts  would  consider  him  as  such. 

The  cargo  was  too  valuable,  not  to  have  brought  his  case 
within  some  of  the  new-fangled  principles,  which  have 
lately  been  adopted  to  reach  neutral  property.  He  knew, 
also,  that  by  the  law  ef  nations,  and  by  that  of  England,  he 
was  entitled,  for  every  purpose  of  trade,  to  be  regarded  as 
an  American ;  but  he  as  well  knew,  that  boards  of  admiralty 
respected  *no  law.     He  was  determined,  therefore,  not  to  2fr 

expose  himself  to  any  embarrassment  that  might  arise  from 
the  iniquity  of  their  proceedings,  or  to  put  it  in  the  power 
of  the  underwriters  to  avail  themselves  of  any  sentence  they 
might  pronounce.  He  could  not,  however,  foresee  the 
length  which  the  supreme  court  would  go  in  giving  effect  to 
such  sentence.  He  little  imagined,  that  presumption  on 
presumption  would  be  raised  to  defeat  his  recovery. 

1st.  It  is  presumed  that  he  is  an  American  citizen.  This 
Is  in  direct  contradiction  to  the  decision  in  the  case  of  Du- 
guet.  Then  it  is  presumed  he  meant  to  warrant  the  pro- 
perty American,  although  nothing  of  the  kind  appears  in  the 
policy.  Next  it  is  presumed  he  meant  to  represent  it  as 
such,  although  the  order  for  insurance  conveys  a  meaning 


275  CASES  IN  ERROR  IN  THE 

ALBANY,     totally  different.     Then  it  is  presumed,  the  property  was  not 
s*^/~Sl~/      American;  because  the  judge,  appointed  specially   for  the 

Vandenheuvel  ,  ,  .,    .      , 

v.  purpose  of  condemning  neutral  property,  has  said   it  be- 

^ompany"1'    l©nged  to  Spanish  subjects.     Lastly,  it  is  presumed  not  to 

— — belong  to  Mr.  Vandenheuvel,  although  his  name    does  not 

appear  in  the  decree.  There  must  be  some  uncommon 
sanctity  in  these  decrees,  where  so  much  pains,  and  such 
forced  constructions,  are  resorted  to  for  their  support. 

But  if  all  these  presumptions  must  be  made  in  a  case 
where  every  honest  feeling  must  take  part  with  the  assured, 
we  say  ; 

5.  That  the  jury  having,  by  their  verdict,  verified  the 
truth  of  his  representation,  the  sentence  cannot  be  received 
as  evidence  to  the  contrary. 

That  a  sentence  abroad,  ought,  in  no  instance,   to  con- 

*  276  clude  the  assureQi>  was  snown  m  tne  csec  °f  Goix  #v.  Low, 

which  is  now  before  this  court.  Referring  to  that  argu- 
ment, we  shall  only  insist,  that  there  is  a  real  and  acknow- 
ledged distinction  between  a  representation  and  a  warranty  j 
and  that  among  all  the  unintelligible  and  contradictory  Bri- 
tish cases,  not  a  single  decision  is  to  be  found,  in  which  this 
outrageous  principle  has  been  applied  to  the  case  of  a  repre- 
sentation. 

If  such  sentences  are  conclusive  against  one  representa- 
tion, why  not  against  another  ?  In  that  case  where  are  we 
to  stop  ?  Representations  are  infinitely  more  diversified  than 
warranties.  One  man  in  his  instructions  to  insure,  calls 
his  vessel  a  ship  ;  she  is  condemned,  because  she  is  a  brig; 
Another  says,  the  crew  are  all  New-Torkers;  she  is  sen- 
tenced, because  one  of  them  was  born  in  Boston,  A  third 
says  his  vessel  is  an  unarmed  merchantman ;  she,  too,  falls 
a  prey ;  and  without  a  particle  of  proof,  it  is  stated  by  his 
honour,  that  she  was  armed  with  thirty-six  guns,  all  twenty- 
four  pounders.  This,  too,  must  be  conclusive  ;  for,  al- 
though the  vessel  insured  should  appear  to  be  an  Albany 
sloop  of  only  fifty  tons,  our  courts  would  be  compelled  to 
believe,  that  by  some  miracle,  she  had  strength  enough  to 


STATE  OF  NEW-YORK. 


2re 


carry  guns  of  that  caliber,  and  would  think  it  very  disre- 
spectful in  the  owner,  to  hint  at  the  impossibility  of  the 
thing. 

A  merchant  will  sobn  find  it  difficult  to  write  an  order  for 
insurance  ;  he  will  hardly  dare  to  open  his  lips.     If  he  tells  " 
the  truth,  and  has  a  hundred  Witnesses  to  attest  to  it,  it  may, 
by  and  by,  be   contradicted  by  a  judge,    of   whose   exist- 
ence he  had  never  heard,  or  who  may  be  one  of    the  herd 
that  infest  *the  West-India  islands.     He  will  be  compelled 
to  be  silent,  or  the  most  he  will  dare  to  say  to  the  broker 
will  be,  "  tell  the  assurers  the  name  of  the  vessel,  and  the 
voyage  ;  pay  whatever  premium  they  ask;  answer  no  ques- 
tions ;  say  not  that  the   vessel   is   painted  white  or  black ; 
that  she  has  two  or  three  masts  ;  that  she  is  armed  or  un- 
armed.    If  they  suspect  the  property  belongs  to  the  French 
consul  or  the   Grand  Seignior,    and   therefore  demand  a 
higher   premium,    do  not   undeceive  them;  pay   at  once 
the  additional  sum  they  ask.     I  know  I  am  a  native  Ameri- 
can, and  that  the  property  is  mine ;  but  rather  than  give  a 
hint  of  the  kind,  which  will  be  twisted  into  a  warranty  or 
representation,  I  will  submit  to  pay  five  or   six  thousand 
dollars  more,  and  have  no  trouble  about  it." 

Thus  will  every  American  be  driven  to  carry  on  trade  as 
a  belligerent  subject,  to   avoid  becoming  a  victim  of   the 
fascinating  doctrine,    that  admiralty    judges   can  do    no 
wrong ;  and  that  their   righteous  decrees  are  to   bind   all 
•mankind,  from  the  rising  of  the   sun  to   where  he  goeth 
down.     The  decisions  of  Sancho,  while  governor  of  Bara- 
traria,   notwithstanding  the    sagacity    which     the  squire 
discovered,  and  the  high  reputation  in  which  they  have  hi- 
therto been  held,  must  now,  like  every  thing  human,  pass 
away.     His  judgments  were  the  result  of  common  sense 
and  common  honesty,  (for  luckily-for  his  subjects,  he  knew 
nothing  of  the  law  of  nations,)  but  they  bound  only  the   in- 
habitants of  a  small  island ;    the   West-India  sentences  on 
the  contrary,  pervade  the  globe,  and  proceed  on  the  eter- 
nal and  immutable  laws  of  God  and  of  nature,    which  no 


ALBANY. 


Vandenheuvel 

v. 

United  Insur. 

Company. 


*  277 


278*  CASES  IN  ERROR  IN  THE 

ALBANY.      earthly  consideration  *  would  have  tempted  Judge  Morrison 

w~v~w      to  violate.  What  a  pity  it  is,  that  his  honour  did  not  disclose 

*n    *.  to  us  the  grouds  of    condemnation.     The  truth  is,   there 

UCompaInyUr'    was  found  on  board  a  letter  in  cypher,   from  the  French 

consul  at  New-Tork :  It  was  this  innocent  epistle   which 

occasioned  the  forfeiture  of  a  most  valuable  property: 
And  yet  this  decree,  this  offspring  of  darkness  and  oppres- 
sion, this  outrage  on  neutral  rights,  this  satire  on  justice, 
must  be  received  as  conclusive  evidence  that  the  property 
belonged  to  the  king  of  Spain,  who,  it  seems,  has  lately 
become  a  merchant,  although  the  very  judge  who  pronoun- 
ced it,  must  have  been  satisfied,  from  the  documents  before 
him,  that  the  ship  and  cargo  actually  and  entirely  belonged 
to  the  plaintiff. 

There  being  neither  a  warranty,  nor  representation,  as  to 
the  property's  neutrality  in  this  case,  it  must  be  superflu- 
ous minutely  to  examine  how  a  foreign  sentence  should  be 
treated  in  this  country.  I  shall  therefore  only  subjoin  a 
summary  of  the  reasons  why,  even  in  case  of  express 
warranty,  a  sentence  should  be  conclusive  of  nothing,  ex- 
cept that  the  property  was  actually  condemned,  and  that, 
therefore,  the  assured  was  entitled  to  recover. 

1.  It  is  contrary  to  the  written  contract,  and  the  true 
understanding  of  the  parties.  The  high  premium  paid  by 
neutrals  during  a  war,  is  to  be  protected  against  unjust 
judgments.     It  is  not  within  human  ingenuity  to  assign 

another  plausible  reason,  why  neutral  property  should,  in  a 
war  between  other  powers,  be  burthened  with  so  great  an 
addition  of  premium.  Is  it  not  then  absurd  and  unjust  to 
say,  that  by  such  a  sentence,  the  risk,  which  ^vas  so  much 
*  279  apprehended,  *and  the  principal  one  intended  to  be  guard- 

ed against,  shall  bar  a  recovery?  Not  all  the  art  of 
man,  or  powers  of  the  human  mind,  can  reconcile  this 
plain,  obvious  and  true  construction  of  the  instrument, 
with  the  doctrine  of  a  foreign  sentence  being  conclusive. 

2.  It  is  a  capture  at  sea  which  gives  to  the  assured  a 
right  to  abandon.     This  being  made,  fixes  the  condition  of 


STATE  OF  NEW- YORK.  279 

the  parties.     A  subsequent  judgment  cannot  alter  or  vary      ALBANY, 
their  rights.     "  If  an  abandonment  be  made,  the  assurers,"    ^^J^ 
says  Emerigon,  "are  alone  interested  in  the  sentence  which     Uuite(jrIn3Ur 
may  be  pronounced ;    and   if  the   ship   be  declared  good       Company. 
prize,  contrary  to  the  law  of  nations,  or  the  laws  of  war,  " 
the  underwriters  must  suffer  by  it.     If  the  property  be  re- 
leased, it  belongs  to  them  in  virtue  of  the  abandonment. 
But  what  fixes,". says  he,   "the  condition  of  the  parties, 
considered  in  itself,  is  not  the  judgment  rendered  by  the  tri- 
bunal of  a  foreign  and  hostile  monarch.     It  is  the  abandon* 
ment,  made  or  not  made  ;  it  is  the  capture  that  confers  the 
tight  of  abandoning."     See  Valin,  v.  2.  p.  122. 

Here,  in  few  words,  without  any  affectation   or  display 
of  learning,  we  have  a  just  and  correct  construction  of  an 
important  expression  in  the  policy,  a  want  of  attention  to 
which  has  occasioned  all  the  confusion  and  absurdity  of 
modern  adjudications.  It  had  not  occurred  to  this  profound 
lawyer,  how  an  unjust  sentence,  which  must  necessarily  be 
subsequent  to  a  capture,  could  defeat  the   rights  of  the  as- 
sured, which  that  event,  followed  by  a  timely  abandonment, 
had  rendered  perfect  and  indefeasible  ;  nor  could  his  pene- 
trating mind  discover,  how  any  question,  arising  *on  a  poli-  *  280 
cy,  could  be  influenced  by  proceedings  which  were  carrying 
on,  in  rem,  at  many  thousand  leagues  distance,  and  in  the 
absence  of  all  the  parties  :  Still  less  could  he  perceive  why 
the  tribunals  of  his  own  country  should  forbear  to  inquire 
into  the  truth  of  a  fact,  which  had  probably  never  been  agita- 
ted abroad.     But  no  study  or  reflection  could  have  brought 
him  to  comprehend  why  a  court  in  France  should  not  de- 
cide according  to  facts  admitted  by  both  parties,  (as  is   the 
case  here,)  merely  because  a  foreign  tribunal  had  condemned 
the  property  as  prize :  He  therefore  considered  the    vessel, 
after  capture  and  abandonment,  lying  entirely  at  the   risk 
of  the  underwriters,  and  that  the   consequences   of  a  con- 
demnation, just,  or  unjust,  must  be  borne  by  them.     This, 
however,  did  not  deprive  the  underwriters  of  any  defence 
arising  out  of  the  peculiar  quality  of  the  property,  or  thr 


280 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Vandenheurel 

v. 

United  Insur. 

Company. 


*  23* 


misconduct,  or  misrepresentation  of  the  assurers.  Such 
questions  frequently  must  have  arisen:  when  they  did, 
they  were  decided  according  to  evidence,  as  in  other  ca- 
ses, by  the  French  courts,  who  saw  no  reasons  for  trans- 
ferring to  a  petty  tribunal,  in  the  east  or  west,  mattery 
which  they  themselves  were  competent  to  determine,  and 
respecting  which  they  possessed  full  and  complete  informa- 
tion. Under  this  order  of  things,  the  assured  contended 
on  equal  ground  with  his  adversary ;  his  witnesses  were 
heard,  his  papers  examined,  and  his  character  and  reputa- 
tion were  not  totally  lost  sight  of.  Under  the  new  state  of 
things,  his'  reputation,  his  witnesses,  the  fairness  of  his 
conduct,  and  regularity  of  his  papers,  avail  him  nought : 
In  short,  he  has  no  more  chance  of  succeeding  against  an 
underwriter,  who  is  protected  by  an  unjust  *foreign  sen- 
tence, than  the  property  itself,  perhaps  a  valuable  India- 
man,  had  of  being  released  from  the  gripe  of  a  corrupt  and 
rapacious  admiralty  judge. 

3.  If  these  sentences  are  received  as  conclusive,  great  in- 
justice will  most  certainly,  and  invariably  follow;  which 
will  be  avoided,  by  permitting  the  assured  to  prove  his 
warranty.  This  argument  should  exclude  the  reception  of 
these  sentences  :  by  doing  so,  injustice  may  be  clone  ;  in  the 
other  way,  an  improper  decision  is  impossible. 

4.  These  courts  being  governed,  not  by  the  law  of  na- 
tions, or  of  war,  but  by  arbitrary  mandates  of  their  respect- 
ive sovereigns,  it  is  folly  in  the  extreme,  to  pay  any 
deference  to  their  decrees. 

5.  If  they  were  truly  governed  by  general,  fixed  and 
known  rules,  their  modes  of  proceeding  are  too  unfriendly 
to  truth,  to  receive  their  sentences  as  evidence  of  any  fact 
whatever. 

6.  It  is  extremely  difficult,  and  so  allowed  to  be  on  all 
hands,  even  when  the  cause  of  condemnation  appears,  which 
is  not  often,  to  discover  by  what  rule  the  judge  has  come 
to  his  conclusion  ;  it  is,  therefore,  not  just  to  say,  it  must 
have  been  for  this  or  the  other  reason* 


STATE  OF  NE W.YORK.  281 

7.  It  is  impolitic  to  give  any  credence  whatever  to  these     ALBANY, 
decrees,  except  when  it  is  attempted  to  disturb  their  direct   Vandenheuvei 

effects.  United 'insur. 

8.  By  admitting  the  assured  to  prove  his  warranty,  these    ,  Comply- 
sentences  are  neither  opened  or  reviewed ;  a  contrary  sup- 
position has  been  the  source  of  much  error  on  this  subject. 

Upon  the  whole,  a  case  more  to  be  favoured,  never  pre- 
sented itself  to  a  court;  the  plaintiff  has  *acted  with  good  *  282 
faith  throughout ;  if  he  has  really  made  any  representation, 
as  to  the  neutrality  of  his  property,  which  he  denies,  the 
defendants  admit  he  has  said  no  more  than  what  is  true. 
He  sees  no  reason,  therefore,  why  he  should  not  entertain 
sanguine  hopes  that  this  judgment  will  be  reversed,  and  the 
underwriters  compelled  to  pay  the  whole  amount  of  their 
respective  subscriptions. 

Brockholst  Livingston, 
of  counsel  for  the  plaintiff' in  error. 

The  defendants  in  error  insisted  that  the  judgment  ought 
to  be  affirmed,  because, 

1.  The  description  of  the  good  American  ship  is  equiva- 
lent to  a  warranty  of  her  as  American  property,  by  the 

plaintiff  in  error. 

2.  Because  every  warranty  in  a  policy  is  deemed  to  be  a 
condition  that  a  certain  thing  shall  be  performed,  and  unless 
it  be  performed  the  contract  is  void.  It  is  perfectly  imma- 
terial with  what  view  the  warranty  is  inserted  ;  or  whether 
it  is  inserted  with  any  view  at  all ;  but  being  once  inserted, 
it  becomes  a  binding  condition  on  the  assured  ;  and  unless 
he  can  show  that  he  has  literally  fulfilled  it,  the  contract  is 
the  same  as  if  it  had  never  existed. 

3.  Because  the  sentence  of  the  court  of  vice-admiralty, 
condemning  the  ship  and  her  cargo  as  Spanish  property, 
without  assigning  any  reasons  for  the  condemnation,  is  con- 
clusive evidence  that  the  ship  was  not  American  property. 
Hence  it  follows,  that  the  plaintiff  in  error  has  failed  in  per- 
forming his  warranty  that  the  ship  was  American  property , 


282  CASES  IN  ERROR  IN  THE 

ALBANY,  and,  consequently,  the  plaintiff  in  error  cannot  be  entitled  to 

Vaiidenheuvel  *recover  a  total  loss ;  but  is  only  entitled  to  recover  a  return 

UnttJ'lnHr.  of  Premium. 

Company.  ROBERT   TROUP, 


y.  283  of  counsel  for  the  defendants. 

On  the  cause  being  brought  on,  Radcliff  and  Kent, 
justices,  assigned  the  reasons  of  the  court,  as  ante,  from 
page  243  to  267  inclusive. 

Clinton,  Senator.  The  plaintiff  having  warranted  a  ship 
and  cargo  as  American  property,  the  question  is,  whether,  in 
an  action  against  the  insurers,  the  sentence  of  a  foreign 
court  of  admiralty,  that  such  warranty  was  false,  is  conclu- 
sive evidence.  It  is  admitted  by  the  plaintiff,  that  the  senr 
tence  binds  and  changes  the  property,  and  that  it  is  prima 
facie  evidence  of  the  fact  set  up  against  him  ;  and,  on  the 
other  hand,  it  is  conceded  by  the  defendants,  that  in  several 
cases,  in  an  action  of  this  kind,  the  judgment  is  not  defini- 
tive in  favour  of  the  insurers  ;  such  as  when,  on  the  face  of 
it,  it  is  founded  on  local  ordinances,  or  contrary  to  the  law 
of  nations,  or  so  ambiguous  that  the  court  cannot,  from  the 
reasons  assigned,  collect  the  grounds  of  it ;  and,  that  this 
case  not  coming  within  either  «f  these  descriptions,  the  con- 
test between  the  parties  still  remains  open,  whether  the 
foreign  sentence  be  prima  facie  or  conclusive  evidence, 
against  the  insured,  and  whether  it  bind  the  property  adju- 
dicated only,  or  is  conclusive  to  every  extent,  and  in  every 
modification  of  the  subject. 

Upon  a  question  of  such  immense  importance,  either  as 
it  respects  the  interests  of  commerce,  the  honour  of  the 
nation,  the  rights  of  individuals,  or  the  principles  of  justice, 
*  284  great  and  mature  deliberation  is  requisite    and   essential. 

I  know  not  any  cause  *that  has  ever  been  discussed  in  this 
court,  which  embraces  so  many  objects,  to  render  the  final 
result  important.  Attempts  have  been  made  to  establish 
the  doctrine  of  conclusiveness ;  and,  as  far  as  I  can  com- 
5 


STATE  OF  NEW-YORK.  284 


Vandenheuvel 


prehend  them,  they  may  be  arranged  under  four  general     ALBANY, 
heads. 

1st.  Authorities,  previous  to  the  19th  April,  1775. 

2d.  Analogical  reasoning  from  domestic  courts.  UCompMy!r' 

3d.  The  nature  and  meaning  of  the  contract  of  insu-  '  ■ 

ranee  ;  and, 

4th.  National  considerations  of  courtesy,  comity,  and  the 
like. 

The  cases  quoted,  as  existing  anterior  to  the  revolution, 
are  not  only  few,  but  are  either  ambiguous  or  not  in  point. 

The  most  ancient  one,  reported  in  2  Shower,  of  Hughes 
v.  Cornelius,  was  an  action,  of  trover,  brought  for  a  ship  sold 
under  a  decree  of  a  French  admiralty  court.  The  court 
admitted  the  sentence  to  be  true,  although  contrary  to  the 
special  verdict.  They  went  upon  the  ground  of  the  decree's 
changing  the  property,  and  of  the  inconveniences  that  would 
result  to  merchants,  if  the  court  should  unravel  the  title  of 
property  acquired  in  this  way  j  and  the  reason  assigned  by 
Chief  Justice  M^Kean,  in  a  case  reported  in  Dallas,  seems 
to  be  conclusive.  The  idea  that  a  sentence  of  a  court  of  ad- 
miralty is  conclusive,  arises  from  this  consideration,  that  the 
court  always  proceeds  in  rem.  The  decree  naturally  and 
necessarily  binds  the  subject  of  the  proceeding.  A  ship  or 
cargo,  or  any  person  purchasing  under  the  decree,  will,  of 
course,  be  secure. 

The  next  case  relied  upon,  is  a   supposed  one  of  *a  #  285 

Swedish  ship.  It  was  first  mentioned  by  an  anonymous 
author,  in  a  book  entitled  "  Theory  of  Evidence."  It  does 
not  appear  in  any  collection  of  reports ;  and  Buller,  in  refer- 
ring to  his  authority  for  this,  mentions  in  the  margin,  the 
case  in  Shower.  It  therefore  appears,  that  it  is  confounded 
with  the  case  of  the  Dutch  ship  in  that  author. 

The  case  of  Fernandez  and  Da  Costa,  was  a  Nisi  Prius 
one,  and  it  expressly  states,  that  the  plaintiff  only  gave  a 
partial  evidence  of  the  vessel's  being  Portuguese;  and  all 
we  can  collect  from  it,  is,  that  the  testimony  adduced  by 
him  was  not  sufficient  to  balance  that  derived  from  the  fo- 


285  CASES  IN  ERROR  IN  THE 


ALBANY,     reign  adjudication.     Will  it  be  believed,   that  upon  this 
w-v-w      slender  ground,  the  mighty  fabric  ol  conclusiveness  is  at- 
\  andenheuvei    ^      ^ ^  tQ  be  erecte(j  ?  j?0Yi  independent  of  decisions  since 
U<£2pSyf     the  revolution,  which  are  no  authority;  of  arguments  from 
analogy,  which  I  shall  presently  notice  ;  and  of  a  few  scat- 
tered dicta  in  the  books,  which  do  not  bear  the  stamp  of 
judicial  authority ;  there  is  nothing  whereby  to  warrant  the 
decision  of  the  court  below. 

The  arguments  derived  from  the  deference  which  is  paid 
by  the  courts  of  England  to  "each  other's  proceedings  do 
not  apply.  They  are  parts  of  the  same  building  held  toge- 
ther by  one  common  arch.  They  are  under  the  same  go- 
vernment, proceed  according  to  the  same  law,  and  redress* 
can  be  obtained  through  higher  tribunals.  If  they  attempt 
to  exceed  their  jurisdiction,  they  can  be  restrained  by  a  su- 
perior power,  which  has  an  interest  in  preventing  any  un* 
due  encroachments,  and  repressing  any  improper  devia- 
tions. This  is  not  the  case  with  a  foreign  court  of  admi- 
ralty. If  a  neutral  conceives  himself  injured,  and  is  indul- 
ged with  an  appeal,  he  must  still  continue  *in  the  courts  of 
the  belligerent ;  and  there  is  not  any  uniform  law  by  which 
these  courts  govern  themselves.  They  listen  more  to  in- 
structions from  the  sovereign,  than  to  the  injunctions  of 
the  law  of  nations.  Lord  Mansfield  admits,  that,  "  in  every 
war,  the  belligerent  powers  make  particular  regulations  for 
themselves  j  and  that  no  nation  is  obliged  to  be  bound  by 
them.  {Park,  360.)  It  is  conceded  by  the  defendants  that 
a  foreign  sentence  is  not  binding  if  resting,  on  the  face  of 
it,  on  such  regulations,  and  yet  they  declare,  that  if  found- 
ed on  these,  but  it  does  not  appear  to  be  so  founded,  that 
then  it  is  conclusive. 

With  respect  to  the  nature  of  the  contract,  upon  which 
much  has  been  said,  I  confess  I  do  not  perceive  the  force  of 
the  reasoning,  which  attempts  to  fix  the  loss  on  the  insu* 

red. 

The  contract  of  insurance,  says  Park,  being  for  the  be- 
nefit of  the  insured,  and  the  advancement  of   trade,   must 


*  286 


Vandenhcuvel 


28T 


STATE  OF  NEW- YORK.  28G 

be  construed  liberally  for  the  attainment  of  those  ends.     ALBANY. 
We  must,  therefore,  not  give  it  an  exposition   that  would 
tend  to  embarrass  commerce,  or   injure  the    assured;  but 
adopt  such  a  construction  as  will  most  promote  the  impor-    Ucompanvlr' 
tant  objects  in  view.     How  commerce  would  be  affected,  ■  — 

shall  hereafter  be  considered.  By  the  terms  of  the  con- 
tract, the  assured  warrants  the  property  to  be  neutral,  and 
it  is  understood  to  be  incumbent  on  him,  so  to  conduct  the 
vessel,  as  not  to  forfeit  her  neutrality.  If  the  vessel  be 
neutral,  in  fact,  he  fulfils  his  warranty.  He  does  not  war- 
rant that  she  shall  be  so  in  the  conception  of  foreign  courts. 
It  is  not  in  the  reach  of  human  sagacity,  to  scan  the  views 
which  different  men  may  take  cf  the  same  subject,  Or  the 
various  motives  which  may  produce  clashing  decisions. 
^•Against  corruption  or  ignorance  in  judges,  perjury  in 
witnesses,  and  fraud  in  captors,  it  is  out  of  the  power  of 
the  assured  to  guard ;  they  are  risks  which  he  casts  upon 
the  assurer,  and  which  the  assurer  undertakes,  in  consider- 
ation of  an  adequate  premium.  All  the  assured  is  requi- 
red to  do,  is  not  to  falsify  his  warranty.  In  this  case,  he 
paid  a  war  premium  of  15  per  cent,  and,  the  foreign  sen* 
tence  out  of  view,  the  special  verdict  has  verified  his  wsttV 
ranty. 

With  regard  to  the  comity  due  from  one  national  tribu* 
Dal  to  another,  it  appears  to  me  that  the  compliment  is  car- 
ried sufficiently  far,  by  considering  the  sentence  as  prima 
facie  evidence.  We  are  not  bound  to  sacrifice  the  substan- 
tial interests  of  our  citizens  to  etiquette  or  courtesy.  If  a 
foreign  nation  will  countenance  unjust  spoliations,  if  a  fo- 
reign judge  will  divide  the  spoil  with  the  plunderer,  are  we 
to  countenance  the  knave  and  the  robber,  and  declare,  with 
all  possible  politeness,  although  we  are  convinced  that  an  in- 
quiry would  paint  you  in  these  colours,  yet,  our  respect  for 
your  authority  will  prevail  over  a  regard  for  justice,  or  the 
claims  of  our  citizens ;  we  shall  silence  all  discussion  ;  and, 
although  we  know  you  to  be  both  ignorant  and  corrupt, 
both  oppressive  and  fraudulent,  yet,  as  you  wear  the  form, 

3  H 


28/ 


CASES  IN  ERROR  IN  THE 


ALBANY. 


VamlenLeuvel 

v. 

United  Insur. 

Company. 


*  288 


*  289 


without  attending  to  the  obligations,  of  a  court  of  justice, 
we  shall  treat  your  decisions  with  all  imaginable  courtesy, 
comity,  deference,  politeness,  and  respect. 

This  is  a  summary  of  the  doctrine,  stripped  of  the  im- 
posing garb  which  it  has  assumed  ;  and  it  can  only  be  a  ques- 
tion, whether  it  is  most  deserving  of  ridicule  or  detesta- 
tion. 

*In  suits,  brought  in  England,  upon  foreign  judgments, 
between  the  same  parties,  the  courts  consider  them  only  as 
prima  facie  evidence  of  the  demand,    and  admit  the  de- 
fendant on  a  plea  of  nil  debet,  to  contest  the  merits  of   the 
original  cause  or  action.     If  a  foreign  judgment   be    not 
considered  conclusive  between  the  same  parties,  in  cases  of 
this  nature,  why  of  a  foreign  court  of   admiralty    between 
third  persons  ?  The  constitution  of  the  United  States  pro- 
vides, that  "  full  faith  and  credit  shall  be  given   in  each 
state,  to  the  public  acts,  records,  and  judicial   proceedings 
of  every  other  state."     And  the  congress  may,  by   general 
laws,  prescribe  the  manner   in  which  such  acts,    records, 
and  proceedings,  shall  be  proved,  and  the  effect  thereof.    Is 
it  conceivable,  that  if  the  sentence  of  courts  of  disconnected 
nations  are  to  be  held   in  such  high  veneration,    by  each 
other,    that   the    framers  of   the  constitution   could  have 
thought    it   necessary    to  make   this  provision  for  sister 
states,  in  the  closest  bond  of  political  connexion.    The  Bri- 
tish have  made  the  interests  of   commerce  a  primary  ob- 
ject of  their  cares.     In  the  discovery  and    arrangement  of 
wise  plans,  and  the  execution  of  efficacious  measures,  for 
the  attainment  of  this  important  end,  they  stand  unrivalled 
in  the  history  of  mankind.    Their  fleets  now  traverse  every 
clime,  and  visit  every  sea,  laden  with  the  riches  of  the  world ; 
they  bear  in  their  hands  the  trident  of  the   ocean.     In  the 
time  of  war,  they  enrich  themselves  with  the  plunder  of  neu- 
trals ;  their  courts  appear  every  where,  and  condemnations 
arc  conducted,  not  according  to  the  law  of  nations,  or  the 
rights  of  parties,  but  according  to  the  instructions  from  the 
sovereign  *and  the  rapacity  of  the  captors.    "  Much  less," 


STATE  OF  NEW-YORK. 

says  tVooddcson,  "  ought  any  of  our  courts  to  slight  a  foreign      ai/ba\y. 


Vandenlieuvfl 


sentence.  Unless  we  give'eredit  to  their  proceedings,  we  can- 
not expect   the  judgments   here  should  be  thought  to  merit 

,  '  .  „       TT  ,  United  Insur. 

irom  them  any  reverence  or  attention.       Here,  then,  is  an       Company. 


explicit  avowal  that  the  doctrine  is  adopted  with  a  view  to 
a  return.  But  France,  having  a  different  policy,  has 
adopted  a  different  system.t     It  is  to  be  further  considered,  ,  _t  Emerigmt, 

■  _  '4.')/.     W4.     and 

that  GrcutlBritain  is  more  than  one  half  her  time  at  war;  admitted  in  the 

i  ■  •  •  •  r  •  HTgoment   of 

that  she  is  an  underwriting  nation,  and,  therefore,  highly  Judge  liadelif. 

interested  in  maintaining  the  rule  laid  down.  Our  policy  is 
entirely  different.  Peace  is  no  less  our  interest  than  our 
duty.  Our  courts  are  not  liable  to  executive  instructions, 
and,  consequently,  must  go  by  the  principles  of  justice  ;  not 
according  to  the  exigencies  of  the  state.  In  establishing, 
therefore,  a  rule  for  our  government,  on  this  momentous 
subject,  argumenta  ab  inconven'ienti  ought  to  have  great 
weight.  France  and  England  have  set  us  the  example  ; 
and,  as  the  law  of  nations  is,  at  least,  doubtful,  we  are  at 
liberty  to  adopt  such  a  construction  as  shall  most  subserve 
the  solid  interests  of  this  growing  country.  We  ought, 
also,  to  consider,  that  the  object  of  insurance  is  indemnity  ; 
that  instead  of  fixing  the  loss  upon  one,  it  divides  it  among 
many  ;  that  with  a  pacific  nation  like  ours,  an  exposition 
that  will  release  the  insurer  from  war  risks,  will  be  a  depri- 
vation of  all  the  benefits  that  can  arise  from  a  neutral  posi- 
tion, and  will  expose  us  to  most  of  the  calamities,  without 
any  of  the  advantages,  derivable  from  a  belligerent  state. 

Even  Great  Britain ,  situated  as  she  is,  has  found  incon- 
venience, in  many  respects,  from  the  generality  *of  the  rule  #  290 
she  has  adopted.  Her  courts  have,  by  recent  decisions, 
attempted  to  narrow  it  into  a  smaller  compass.  Several 
important  exceptions  have  been  sanctioned,  and  whenever  a 
different  course  of  policy  shall  be  deemed  advisable,  the 
whole  system  will  be  destroyed.  Our  court  has,  unadvi- 
sedly, and,  in  the  first  instance,  without  hearing  argument, 
taken  that  direction,  and  with  the  best  intentions,  has  per- 
severed in  a  doctrine,  which  would  inevitably  lead  to  the 


290 


CASES  IN  ERROR  IN  THE 


ALBANY. 

Vanrtenheuvel 

v. 
United  Insur. 

i.any. 


spoliation  of  our  citizens,  and  the  destruction  of  our  com- 
merce. 

There  is  nothing,  either  in  the  constitution  of  the  admi- 
ralty courts  of  European  nations,  or  the  mode  of  proceeding 
in  them,  which  entitle  them  to  respect.  They  adopt  the 
rules  of  the  civil  law.  The  judges  hold  their  offices  during 
pleasure,  and  follow  the  instructions  of  the  ministry.  The 
captors,  who  are  interested,  are  admitted  as  witnesses,  and 
the  judges  are  paid  in  proportion  to  the  condemnations. 
They  are  generally  composed  of  needy  adventurers  ;  their 
great  aim  is  plunder,  and  their  primary  incentive,  avarice. 

I  have  thus,  in  a  cursory  manner,  glanced  at  the  principal 
grounds  of  reasoning  in  the  cause,  and  I  must  own^  that  I 
feel  most  deeply  impressed  with  its  importance.  The 
effects  of  the  decisions  of  this  day  will  be  felt  when  we  are 
no  more  j  and  I  trust  that  it  will  receive  the  approving 
voice  of  our  consciences,  and  of  our  country. 


Gold,  Senator.  The  questions  that  arise  in  this  cause 
for  the  consideration  of  the  court,  are : 

1st.  Does  the  warranty  in  the  terms  of  the  good  American 
4/27/7,  the  Astrea,  import,  in  judgment  of  law,  American,  or 
neutral  property  ? 
#  291  *2d.  Is  the  sentence  of  the  vice-admiralty  of  Gibraltar 

conclusive,  and  does  it  repel  the  verification  of  -warranty 
here  ? 

On  the  first  preliminary  question,  however  loose  and  in- 
definite men  are  in  conversation  upon  subjects  of  this  nature, 
yet,  when  the  occasion  is  considered,  the  bearing  of  the 
property  of  the  ship  on  the  professed  object  of  the  contract  j 
its  materiality  to  the  risk,  and  consequent  propriety  of  an 
understanding  on  the  point ;  the  court  must,  1  apprehend, 
consider  Mr.  Vandenheuvel  as  explaining  himself  on  the 
question  of  property,  and  under  the  terms  American  ship, 
warranting  it  neutral. 

Such,  in  my  apprehension,  is  the  plain,  fair  and  rational 
import  of  the  language  used  by  the  assured  on  this  occa- 
sion. 


*  292 


STATE  OF  NEW-YORK.  291 

On  the  second  question  in  the  cause,  involving  the  legal     ALBANY, 
effect  of  the  sentences  of  foreign  admiralties,  I  enter  with    Vaudenheuvel 
much  diffidence,  and  all  the  solicitude  which  its  extensive    UnitJ-[nsun 
operation  upon  the  fortunes  of  our  fellow-citizens,  and  the       Company. 
jurisprudence  of  our  country,  inspires.     If  our  law  is  set-  " 
tied  on  this  point ;  if  the  question  is  bound  by  authority, 
then  law  must  have  its  course,  however  unpleasant  the  con- 
sequences, however  opposed  to  the  speculations  of  the  most 
enlightened  statesmen. 

For  authority  on  the  question,  adjudged  cases  in  that 
country  from  whence  our  jurisprudence  is  derived  antece- 
dently to  our  revolution,  must  be  resorted  to. 

The  necessary  effect  of  the  sentences  of  foreign  admiral- 
ties in  rem,  in  changing  the  property  in  the  subject  matter 
in  case  of  condemnation,  is  readily  *evinced  both  in  point 
of  reason  and  authority.  To  this  the  case  of  Hughes  v. 
Cornelius,  2  Shower,  232.  strengthened  by  some  other  cases, 
bears  strong  testimony  ;  in  this  the  jurisdiction  of  all  admi- 
ralties, and  the  peace  of  all  civilized  nations,  are  essentially 

concerned. 

But  the  reason  for  extending  those  sentences  beyond  the 
attainments  of  the  above  objects,  to  control  the  stipulations 
of  parties  in  a  policy  of  insurance  are  not  equally  cogent ; 
the  necessity  not  equally  apparent. 

For  authority  to  support  this  application  of  admiralty 
sentences  is  cited,  BulleSs  N.  P.  244.  TJieory  of  Evidence, 
37.  aud  the  case  of  Fernandez  v.  Da  Costa,  Park,  177.  In 
the  two  first  books,  the  rule  to  the  above  extent  is  laid  down 
in  nearly  the  same  words,  in  plain  and  unequivocal  terms  ; 
but  no  case  is  cited  in  the  Theory  of  Evidence,  in  support  of 
the  doctrine,  and  in  Buller,  the  case  relied  on  is  that  of 
Hughes  v.  Cornelius ;  which,  although  containing  observa- 
tions of  the  court  of  a  very  general  and  unqualified  nature, 
yet,  in  the  point  adjudged,  does  not  warrant  the  .rule  as 
there  laid  down. 

The  case  of  Fernandez  v.  Da  Costa  is  apposite  to  the 
question  before  the  court,  and  merits  all  that  respect  which 


292 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Vandenhcuvel 

v. 

United  Insur. 

Company. 


*  293 


is  due  to  a  Nisi  Prim  decision  of  one  of  the  greatest  judges 
that  ever  sat  in  Westminster  Hall.  The  name  of  Judge 
Butter  must  be  considered  also  as  adding  some  authority  to 
the  rule  by  him  laid  down,  though  supported  by  no  adjudged 
case  there  cited. 

No  adjudications  at  bar,  no  elaborate  discussions  appear 
to  have  taken  place  on  the  question.  On  this  foundation,  in 
point  of  authority,  stands  the  doctrine  Contended  for  by 
the  defendants  in  error  ;  and  we  are  now  called  upon  to 
say,  whether  the  question  is  so  bound  down  by  authority  as 
to  be  deemed  at  rest,  and  to  repel  a  consideration  of  its 
merits. 

After  much  reflection  on  the  point,  in  every  view  I  have 
been  able  to  place  it,  I  am  not  satisfied  that  the  law  on  the 
subject  was  settled  at  the  period  of  our  revolution.  In 
pursuing  the  history  of  law  principles,  in  retracing  adjudi- 
cations, and  collecting  cases  upon  questions  long  agitated  in 
courts,  we  find  early  cases  often  overruled ;  first  opinions 
disregarded  and  reversed,  and  important  questions  finally 
settled  in  opposition  to  greater  authority  of  precedent  than 
what  is  to  be  found  on  the  question  before  the  court. 

Such  is  the  result  presented  by  a  perusal  of  English 
reporters. 

But  general  principles  are  resorted  to  in  support  of  the 
definitive  effect  of  admiralty  sentences,  and  domestic  judg- 
ments are  adduced  for  illustration. 

In  the  principles  of  sovereignty,  in  the  superior  integrity 
and  responsibility  of  domestic  judges,  their  exemption  from 
the  influence  of  policy,  from  the  dominion  of  passions  hos- 
tile to  the  administration  of  justice,  too  often  excited  in 
belligerent  nations,  in  the  prevalence  of  the  salutary  maxim 
of  municipal  origin,  "  ut  sit  finis  litium"  will  be  found  rea- 
sons, I  apprehend,  for  superior  confidence  in  domestic  tri- 
bunals. 

The  case  of  Walker  v.  Witter,  Doug.  J.  is  strong  to  show 
the  difference  between  domestic  and  foreign  judgments ; 
the  incontroilable  verity  predicated  of  the  former,  is  with- 

2 


STATE  OF  NEW- YORK. 


293 


held  from  the  latter,  which  are  there  holden  to  be  examina- 
ble. Nor  is  the  effect  *of  this  authority  repelled  by  the 
argument,  that  a  court  resorted  to,  to  carry  into  effect  a 
foreign  judgment,  ought  to  be  satisfied  of  its  justice  ;  the 
application  is  for  justice  and  not  favour,  and  ihe  court  thus 
resorted  to  is  bound  by  constitutional  principles,  not  to 
delay  that  justice ;  besides,  the  same  principle  will  apply  to 
the  case  before  the  court. 

The  case  of  Gage  v.  Bulkely,  in  Ridgewaij,  and  Burrows 
v.  "Jemima,  in  Strange,  are  not  considered  as  bearing  on  the 
question  ;  they  resting  on  a  different  principle,  that  of  the 
"  lex  loci  contractus."  The  qualified  manner  in  which 
admiralty  sentences  are  now  received  in  England;  their 
different  operation  as  to  the  fact  and  the  laxv,  serve  to  mark 
a  wide  distinction  between  those  sentences,  and  domestic 
judgments. 

If  the  reasons  assigned  for  an  admiralty  decision,  do  not, 
when  tested  by  the  law  of  nations,  bear  out  the  conclusion, 
the  sentence  is  rejected  ;  if  the  reasons  are  assigned  in  an. 
obscure  and  unintelligible  manner  as  to  the  point  decided,  the 
result  is  the  same ;  but  if  the  judge  should  have  no  reasons, 
or,  by  casualty,  omit  to  put  them  on  the  record,  then  the 
sentence  becomes  conclusive,  and  repels  all  examination. 

"Why  a  sentence  founded  on  error,  as  to  facts,  should  be 
more  conclusive  than  one  founded  on  error  in  law,  is  diffi- 
cult to  conceive.  That  the  mode  of  admiralty  trial  is  more 
favourable  to  the  investigation  of  truth  than  that  provided 
by  our  common  law,  is  not,  I  apprehend,  evinced  by  expe- 
rience, nor  do  the  opinions  of  some  very  eminent  writers 
warrant  any  such  conclusion. 

*To  sentences  standing  on  such  grounds,  my  mind  is  not 
yet  reconciled  to  yield  that  controlling  effect,  now  contended 
for.  Nothing  short  of  the  law  being  made  out  in  the  clear- 
est and  most  satisfactory  manner,  can,  in  my  apprehension, 
justify  the  reception  of  those  sentences,  upon  the  broad 
ground  now  urged  upon  the  court. 


ALBANY. 

Vanilenheuvtl 

v. 
United  Insur. 

Company. 

*  294 


*  29J 


295 


CASES  IN  ERROR  IN  THE 


ALBANY. 

Vandenheuvel 

v. 

United  Insur. 

Company. 


*  296 


There  is  another  ground,  remaining  to  be  considered,  on 
which  it  is  with  some  difficulty  I  have  been  able  to  form  an 
opinion. 

The  position  of  the  insurer  is,  that  the  assured,  on  enter- 
ing into  the  policy,  xvell  knows  the  tribunal  of  the  captors  to 
be  the  prize-forum ;  that  a  consideration  of  neutrality  is 
essential  to  the  determination  ;  and,  therefore,  by  the  terms 
of  his  contract,  assents  to  this  test  of  his  warranty.  If  the 
law,  giving  a  conclusive  effect  to  admiralty  sentences,  is  to 
be  deemed  settled,  then  would  the  above  conclusion  cor- 
rectly follow;  then  would  the  assured  be  presumed  to 
know  that  law,  and  to  assent  by  his  contract  to  all  its  con- 
sequences :  but,  upon  any  other  ground,  he  may  with  equal 
reason  be  presumed  to  assent  to  a  limited  operation  of  these 
sentences  as  prima  facie,  or  presumptive  evidence,  reserving 
to  himself  a  right,  and  taking  upon  himself  the  burthen  of 
disproving  the  same,  and  verifying  his  warranty.  Such 
must  be  the  conclusion  of  the  assured  in  France. 

A  mind  conscious  of  the  truth  of  the  representation  in 
the  policy,  would  with  difficulty  be  carried  to  the  conclu- 
sion, that  although  the  property  insured  be,  in  fact,  neutral, 
yet  if  condemned  it  must  from  thence  be  deemed  enemy's. 
Where  the  property,  in  fact,  is  neutral,  and  in  such  case 
only,  will  the  above  opinion  ^operate  ;  it  is  not  to  be  pre- 
sumed, that  the  assured  calculates  on  the  event  of  a  con- 
demnation. In  the  various  cases  of  loss  by  any  of  the 
perils  insured  against,  the  falsification  of  the  warranty  is 
equally  fatal  to  a  recovery  by  the  assured,  though  no  foreign 
admiralty  may  have  passed  upon  the  question. 

Such  are  the  grounds  on  which  my  opinion  on  this  im- 
portant question  is  formed.  I  will  only  add,  that  it  is  with 
no  small  diffidence,  I  submit  an  opinion  for  the  reversal  of 
the  judgment  of  a  court,  possessing,  in  so  eminent  degree, 
the  high  respect  and  confidence  of  the  community. 

Judgment  of  reversal. 


STATE  OF  NEW-YORK.  296 

Charles  Newkerk,  and  Geertruyd  his  wife,  Execu-      Albany. 
trix    of    Peter    Schuyler,    deceased,    Appellants, 
against  Edward  S.  Willed,  Respondent. 


ON  the   18th  dav  of  April,  1799,  the  appellants  filed  a      A  bill  for  a 

iliscovery       anil 

bill  in   chancery,  setting  forth  that  the  testator  died  in  the  injunction    to 

'  ,  i    r      i  ii  ^  i     »r       /       ;    l-'       stav  proceedings 

winter  1792,  and  leu  the  appellant,  Ueertruya  JSexvkerk,  his  Bt  law,   must 
widow   and    executrix.     That    soon  alter  the   respondent  cuiaVmattcr 
demanded  a  considerable  sum  of  money,  which  she  refused  j2ri^,t  *\£JT'% 
to  pay  ;  that  the  respondent  thereupon  offered  to  submit  the  [j-*^"  s ^  a* 
controversy  to    arbitrament,  which  she  also  refused  :  that  material  to  his 

J  _  defence,     and 

thereupon  the  respondent,  in  April,  1793,  and  after  the  inter-  without    which 

he  cannot  pro- 
marriage   of    the   appellant   Gecrtruyd  with  the  appellant  ceed  to  trial.  A 

...  ,        mere    inquiry 

Charles  Newkerk,  commenced  a  suit  against  them,  in  the  because     the 
supreme  court,  for  1,000/.  for  moneys  pretended  to  be  due  IST^t  law  are 
to  him  from  said  Schuyler  ;  that  the  appellants  did  not,  of  "SS^aiiitX- 
their  own  knowledge,  know  any  thing  of  the  said  demand  ;  fd»  ^?™s  a  fish" 
but   had  strong  grounds  to  believe  the  *same  to  be  unjust,  *  297 

because  the  respondent  had  not,  during  the  life  of  said 
Schuyler,  taken  measures  to  adjust  his  claim,  and  because 
he  did  not  possess  any  vouchers  to  establish  the  justice  of 
his  demand  ;  that  the  relations  and  accounts  given  by  the 
respondent  were  inconsistent  and  various,  and  that  the 
appellants  being  unacquainted  with  the  origin  of  the  pre- 
tended debt,  could  not,  without  a  discovery  by  the  respond- 
ent of  all  the  facts,  safely  proceed  to  a  trial  of  the  said 
suit.  And  that  the  respondent  might,  until  he  should  have 
fully  answered  to  the  said  facts  and  interrogatories,  stated 
in  the  said  bill,  be  enjoined  from  proceeding  to  a  tfial  at 
law  in  the  said  suit,  the  appellants  prayed  an  injunction, 
which  was  issued  of  course,  on  the  usual  affidavit. 

Fourteen  days  previous  to  the  filing  the  above  bill,  viz. 
on  the  4th  day  of  April,  1799,  the  said  appellants  had  filed 
a  bill  against  the  respondent,  (in  substance  the  same  as  the 
second  bill,)  to  which  the  respondent  had  put  in  his  answei 

3  i 


g97  CASES  IN  ERROR  IN  THE 

Albany,     before  the  second  bill  was  filed,  by  which  answer  the  re- 
spondent states,  that  in  the  year  1786  or  1787,  he  was  pos- 
sessed of  certificates  or  public  securities,  amounting  to  800/. 
and  upwards,  besides  interest,    which  he,    at  the  solicita„ 
tion  of  the  said  Schuyler,  delivered  to  him,  on  his  promise 
to  lay  them  out  for  the  respondent's  use  in  the  purchase  of 
forfeited  lands ;  that  he  had  several  times   applied   to  the 
said  Schuyler,  in  his  life-time,  but  without  success,  to  ren- 
der an  account  and  come  to  a  settlement  for  said  certificates  y 
and  that  on  the  last  of  those  applications  to  the  said  Schuy* 
ler,  at  Johnstown,  he   declared  he  had  sent  the  said  certifi- 
cates to  New-York  with  his  wife,  the|ahove  appellant,  to  be 
disposed  of,  and  that  on  her  return  he  would  pay  the  re* 
spondent  for  the  same. 
*  298  *The  bill  first  filed,  to  which  the  answer  was  put   in  on 

the  14th  day  of  December,  1799,  was  ordered  by  the  Chan^ 
cellor  to  be  dismissed. 

On  the  4th  day  of  January,  1800,  the  Chancellor,  after 
hearing  the  arguments  of  counsel  for  both  parties,  ordered 
the  injunction  issued  on  the  second  bill  to  be  dissolved. 

On  the  above  hearing,  to  dissolve  the  injunction,  the 
Chancellor  admitted  the  first  bill,  and  the  answer  thereto,  to 
be  read ;  and  also  an  agreement  entered  into  in  the  suit,  in 
the  supreme  court  by  Willett  against  the  appellants,  in 
which  they  consented  and  agreed  "  that  the  rule  of  refer- 
ence be  discharged  ;  that  the  cause  be  tried  by  a  struck  ju- 
ry ;  that  the  affidavits  of  Teunis  Van  Wagencn,  John  Roor- 
back and  Gerrit  Staats,  jun.  be  admitted  and  read  as  evi- 
dence ;  that  no  writ  of  error  shall  be  brought  by  the  defend- 
ants merely  for  the  purpose  of  delay  ;  nor  shall  any  bill  in 
chancery  be  brought  or  filed. 

The  case  now  came  up  on  an  appeal  from  the  Chancellor's 
order  dissolving  the  injunction. 

Kent,  J.  This  is  an  appeal  from  an  interlocutory  order 
of  the  court  of  chancery,  dissolving  an  injunction,  withou? 
any  answer  being  put  in  to  the  bill.  ■ 


STATE  OF  NEW- YORK. 


298 


The  two  most  material  points  which  were  raised  at  the 
argument,  upon  this  appeal,  were  these: 

1st.  Is  an  order  dissolving  an  injunction,  one  of  the  or- 
ders of  the  court  below,  upon  which  an  appeal  will  lie? 

2d.  Did  the  bill  contain  sufficient  equity  to  entitle  the  ap- 
pellants to  a  discovery,  and,  consequently,  to  an  injunction 
to  stay  proeeedings  at  law,  in  the  mean  time  ? 

*To  discover  the  first  question  with  accuracy  and  satis- 
faction ;  to  draw  the  line  between  that  class  of  orders,  ari- 
sing in  the  progress  of  a  cause,  which  are  susceptible  of 
review  by  appeal,  and  that  class  of  orders  which  are  not 
susceptible,  (and  such  a  distinction  may,  and  does  exist,) 
would  acquire  more  examination  than  I  have  had  time  to 
bestow,  or  than  the  late  period  of  the  session  of  this  court 
would  conveniently  permit :  I  shall,  therefore,  give  no  opi- 
nion on  the  first  point ;  nor  is  it  necessary  in  the  present 
instance,  to  the  rights  of  the  parties,  because,  admitting 
an  appeal  to  lie  upon  the  order,  I  am  of  opinion,  on  the 
second  question,  that  the  injunction  was  properly  dissolv- 
ed. 

The  bill  does  not  state  sufficient  equity,  to  entitle  the  ap- 
pellants to  a  discovery.  It  states  generally,  that  the  re- 
spondent had  made  a  demand  upon  one  of  the  appellants,  as 
executrix  of  Peter  Schuyler,  deceased  ;  and  that  as  he  did 
not  produce  any  voucher,  she  had  refused  to  pay  him.  It 
states  further,  that  he  proposed  an  arbitration  which  she  re- 
fused, and  that  finally,  he  had  brought  a  suit  against  the 
appellants,  in  the  supreme  court.  The  bill  states  further, 
that  the  appellants  know  nothing  of  the  demand  of  their 
cxvnknoxvledge,  but  that  they  believe  it  unjust,  because  the 
respondent  took  no  measures  to  liquidate  and  settle  it,  in  the 
life-time  of  Peter  Schuyler,  and  does  not  now  produce  any 
vouchers,  and  has  been  inconsistent,  in  what  he  has  from 
time  to  time  said,  as  to  the  nature  and  extent  of  his  de- 
mand. 

This  is  the  substance  of  the  bill  {  it  amounts  to  this,  the 
respondent  has  sued  us  at  law,  and  we   do   not  know  for 


ALBAXY. 
\^%-^*/ 

Newkerk 

v. 
Willett. 


*  299 


*30O  s      CASES  IN  ERROR  IN  THE 

ALBANV.      what,  and  therefore  we  ask  for  a  discovery  ^beforehand, 
Newkerk       although  we  have  reason  to  conclude  he  has  sued  us  upon 
WiHett         some  groundless  pretence.f     Such  a  bill  shows  no  equity, 
i         —      ,-  no  right  to  a  discovery.     It  sets  forth  no  matter  material  to 
m.Ve%   Fmb.  a  defence  zX.\*w,  and  which  cannot  be  proven,  unless  by  the 
lit'    l    Vern'  confession  of  the  opposite  party.     It  is,  to  use  Lord  Chan- 
cellor Hardtvicke's  expression,  a  mere  fishing  bill,  seeking 
generally,  a  discovery  of  the  grounds  of  the  respondents 
demand,  without  stating  any  right,  to   entitle  them    to   it; 
such  a  bill  may  be  exhibited  by  any  executor  or  administra- 
tor, and  indeed  by  any   defendant,  who   is   not  already  in 
possession  of  the  plaintiff's  proofs.     But  the  court  of  chan- 
cery has  wisely  refused  to  sustain  bills  for  discovery  in  such 
latitude,  and  unless  the  party  calling   for  a  discovery  will 
state  some  matter  of  fact  material  to  his  defence,    or  which 
he  wishes  to  substitute  by  the  confession  of  the   defendant, 
the  court  will  not  enforce  a  discovery. 

I  am  accordingly  of  opinion,  the  appellants  in  the  present 
case  were  not  entitled  to  a  discovery,  and  that  the  injunc- 
tion staying  the  suit  at  law  was  properly  dissolved,  and  that 
the  order  for  that  purpose  be  affirmed.  And  further,  that 
the  appellants  pay  to  the  respondent  his  costs  of  the  ap- 
peal to  be  taxed. 

Judgment  of  affirmance  unanimously. 


*  I°3  ^(Supreme  Court.) 

James  Jackson,  ex  dern,  the   new    loan  officers   of 
•'     Rensselaer  county,  and   John  Crabb,  against  Isaac 
Bull. 

A  sale  by  loan       THIS  case  was   stated  thus  :    John  Crabb.  one  of  the 

officers,   at  auc-  •  ^ 

tion,  is   within  iess0rs,  purchased  of  the  new  loan  officers,  at  public   auc- 

the     statute    of  '   r 

frauds.    If  a  liar-  ,  •    .     •  • 

«-ain  for  the  purchase  of  land  be  concluded,  and,  at  the  expiration  of  some  time,  the  con- 
veyances duly  executed,  the  subsequent  deeds  will  so  far  have  relation  to  the  day  of  conclu- 
ding the  bargain,  that  an  intermediate  sale  by  the  vendee -will  be  good  against  him  and  his 
privies,  and  the  possession  of  the  original  vendor,  at  the  time  of  such  second  sale,  cannot  be 
urged  as  a  possession  adverse  to  the  vendee,  and  that,  therefore,  nothing  passed  by  his  deed. 


Bull. 


STATE  OF  NEW- YORK.  301 

lion,  on  the  3d  Tuesday  in  September,  1795,  one   hundred      ALBA3JY. 
and  sixtv  acres  of  land.       On  the    31st  October,  and  4th         !    . 

*  Jackson 

November,  following,  he  sold,  hy  deed  of  bargain  and  sale, 
one  hundred  and  forty  acres,  parcel,  &c.  to  Abraham  Fran- 
cisco, under  whom  the  defendant  claims  ;  and  on  the  5th 
y Unitary,  1796,  he  obtained  his  deed  from  the  lean  officers, 
in  pursuance  of  his  former  sale,  and  now  brings  his  eject- 
ment on  the  latter  deed,  to  recover  the  whole  one  hundred 
and  sixty  acres. 

Question.  Is  he  entitled  to  recover  ? 
Per  Curiam,  delivered  by  Kent,  J.  I  incline  to  the 
opinion  that  no  legal  estate,  except  a  mere  tenancy  at  will, 
vested  in  Crabb,  until  the  loan  officers  had  executed  the 
deed.  The  statute  of  frauds  prevents  any  greater  estate 
from  vesting  without  writing,  and  it  is,  besides,  a  general 
rule  of  law,  that  a  corporation  cannot  sell  land  without 
deed  ;  and  the  loan  officers,  in  the  present  instance,  are 
ordered  by  the  act,f  to  convey  the  land  they  sell  at  auc-  tl<lth  - 
tion,  by  deed,  under  the  loan  office  seal.  i;'-1-- 

But  I  adopt,    as  a  just  rule  of  construction,  and  appli- 
cable to  the  present  case,  the  principle  laid   down  by    this 
court,  in  the  case  of  Raymond  v.  Jackson,  ex  dem.  June,f     J  Jo*-  Term, 
"  that  whenever  it  is   intended   to    be  shown,  that   nothing 
passed  by  a  grant,  by  reason  that  at  the  *time,    there  was  a  %.  ^qo 

possession  in  another,  adverse  to  die  grantor,  then  the  time 
to  which  the  grant  is  to  relate,  is  the  time  when  the  bar- 
gain for  the  sale  was  finally  concluded  between  the  par- 
ties ;  and  that,  consequently,  any  intermediate  adverse 
possession,  before  the  execution  of  the  conveyance,  (which 
is  the  only  technical  consummation  or  evidence  of  the 
grant,)  can  never  affect  it."  In  the  present  case,  there- 
fore, the  deed  to  Crabb,  of  the  5lh  January,  1795,  snail 
have  relation  back  to  the  3d  Tuesday  of  September,  1795, 
being  the  time  of  the  final  conclusion  of  the  bargain,  by 
the  sale  and  purchase,  at  public  vendue,  so  as  to  render 
valid  any  intermediate  sale  or  disposition  of  the  land,  by 
Crabb.  Even  supposing  the  deed  of  the  5th  January, 
1796,  could  not  have  this  retrospective  force  by  rckuion  to 


302  CASES  IN  ERROR  IN  THE 

ALBANY.      the  tjme  of  t|1£  conclusion  of  the  sale  and  purchase  at  the 

vendue,  still  Crabb  can  never  be  permitted  to  claim  in  op* 

position  to  his  deeds  of  the  3lst  October,  and  4th  November, 

1795,   by  alleging,  that   he  had  no  estate  in   the  premises. 

Co.  c£nt.  %«!li  F°r  if  a  man  make  a  lease  by  indenture  of  land  which  is 

47.  b.  352.  a.  b.       t  his    or  jevy  a  frne  Qf  an  estate  not  vested,   and  he  af* 

4  Co.     53.   a.   2  '  J  .  .  , 

j^ofZ.    us.  o      terwards  purchases  the  land,  he  shall,  notwithstanding,  be 

JWod.258.1  SW/A\  r  .  .  ,       .      ,      „ 

270.  2  i<i.  Ray-  bound  bv  his  deed,  and  not  be  permitted  to  aver  he  had  no- 
Tpdmnl  373.  thing.  Whether  a  person  can,  in  such  case,  be  said  tech- 
nically to  be  estopped,  because  it  is  of  the  nature  of  an  es- 
b.  265.  b.  339  a.'  toppel,  to  bind  privies  as  well  as  parties  ;  and  Coke  gives  an 
Liu.  sec.  037.  .^nce,  wherein  an  act  of  this  kind,  without  warranty, 
will  bind  the  grantor  and  not  his  heir  ;  and  whether  a  deed 
a  i7°\Lf  Co.  can  operate  at  all  byway  of  estoppel,  if  any  interest  passed 
si.  b  3  P.  Ww,  by  it,  are  points  on  which  I  forbear  to  give  an  opinion,  be- 
*3303  cause  they   are  *not  only  something  difficult,  but  not  neces- 

sary to  be  discussed. 

In  the  present  case,  there  can  be  no  doubt  but  that  Crabb 
himself   shall  never  claim  against  his  own  deed. 

I  am  of  opinion,  therefore,  that  judgment  be  rendered 
for  the  plaintiff,  for  the  twenty  acres  only. 

Judgment  for  the  plaintiff; 


(Supreme  Court.) 
Johnson  against  Bloodgood. 
When  a  note  i.       THIS  was  an  application  to  set  aside  a  verdict,  rendered 

purchased  after  .     .— 

Sue,    every  pre-    for  the  plaintltt. 

ta£*  £fe!       From  the  judge's  report,  the  present  appeared  to  bean 
the    purchaser.        .      broUoht  for  the  benefit  of  the  creditors  of  the  plain- 

Therefore,  if  he    dWluu  «»"«6  „  ,  , 

state  it  to  have  tiff  and    his  name  used   merely  to  satisfy  the  forms  oi 

been    generally         *>  » 

in  such  a  year,    la^-. 

and  the   maker 

has       assigned  „„,i,pifiil,  r™Mflro    in  that  year,  it  shall  be  presumed, 

hispropertyunderthe.nsolventlaw,onthel6th  ^™f^afte  Jue> '  aud    after  an    assign- 

the  purchase  was  after  the  assignment.    A  note  Pur™as™   ■ *  '    .      the  name    of  th«r 

ment  under   the  insolvent  law,  cannot,  in  an  action   by   the   assignees,   m 

^solvent,  be  set  off  against  a  debt  due  to  the  insolvent  *  estate. 


STATE  OF  NEW-YORK.  393 


Johnson 

v. 
Blood  good. 


The  point  to  be  decided  was  this  ;  whether,  in  a  suit  ALBANY, 
brought  by  the  assignees  of  an  insolvent  debtor,  in  his 
name,  but  for  the  general  benefit  of  his  creditors,  the  de- 
fendant shall  be  permitted,  under  the  plea  of  payment,  to 
set  off  a  note  of  the  insolvent,  purchased  after  it  became 
due,  and  after  the  assignment  of  the  insolvent,  though 
without  actual  notice  of  it,  at  the  rate  of  12*.  in  the  pound, 
and  for  the  purpose  of  such  set-off. 

Kent,  J.  This  suit  is  substantially,  between  the  credit- 
ors of  Johnson  and  the  defendant.  It  is  now  well  under- 
stood, that  courts  of  law  will  take  notice  of  assignments 
and  trusts,  and  consider  who  are  beneficially  interested, 
and  will  protect  the  cestui  que  trust. ^  \  b.  &  E.  620. 

*In  giving  my  opinion,  I  mean  not  to  question  the   law  *  304 

that  a  bill  or  note  may  be  negotiated  after  it  is  due,J  and  be  \  1  Ld.  liaym. 
declared  upon  as  such.  But  I  approve  and  adopt,  as  salu- 
tary, and  calculated  to  prevent  fraud,  the  doctrine  laid 
down  in  the  cases  of  Brown  and  Davis,§  and  Taylor  and  §  3  Bumf.  so. 
Mather,  that  if  a  bill  or  note  be  endorsed  after  it  becomes 
due,  it  throws  a  suspicion  on  the  transaction,  and  the  en- 
dorsee shall  take  it,  subject  to  all  the  equity  that  existed  in 
favour  of  the  maker  of  the  note,  before  it  was  endorsed  ; 
and  if  there  be  any  attendant  circumstances  of  fraud,  the 
endorsee  shall  have  every  presumption  turned  against  him. 
So  in  the  present  case,  the  defendant,  stating  only  general- 
ly the  year  1793,  in  which  he  purchased  the  note,  it  shall 
be  presumed  he  purchased  it  after  the  16th  January  1793, 
the  date  of  the  assignment  of  the  insolvent's  estate. 

When  a  note  is  offered  for  sale,  after  it  has  become  due, 
and  at  a  discount,  what  is  the  necessary  inference  ?  most  cer- 
tainly that  the  maker  is  insolvent ;  and,  if  so,  his  effects 
and  credits  ought  immediately  to  enure  to  the  benefit  of  his 
creditors,  and  he  be  regarded  but  as  their  trustee. 

The  presumption  will  be,  because,  so,  indeed,  justice 
would  dictate,  that  the  insolvent  makes  forthwith,  a  full 
and  frank  disclosure  and  assignment  of  all  his  property,  for 
the  payment  of  his  debts.      And  if  the  insolvent  do,  in 


304 

ALBANY. 

Johnson 

v. 

Blood  good. 

*  305 


*  6  JDumf.  59. 


CASES  IN  ERROR  IN  THE 

fact,  make  such  an  assignment,  the  purchaser  in  such  a 
case,  of  a  note,  after  the  assignment  at  a  depreciated  rate, 
for  the  purpose  of  a  set-off,  though  he  may  not,  in  fact, 
know  of  the  assignment,  is  nevertheless  properly  chargea- 
ble with  having  acted  under  the  presumption  of  notice  of 
the  ^assignment.  The  law  infers  the  notice,  being  wjiat 
is  termed  constructive  notice.  2  Fonb.  155.  He  accord- 
ingly commits  a  fraud  upon  the  creditors  ;  he  does  an  act 
mala  jide,  and,  as  Lord  Kenyan  observed,  in  a  case  not 
very  unlike  the  present,  u  it  would  be  most  unjust,  indeed, 
if  one  person  who  happens  to  be  indebted  to  another,  at  the 
time  of  the  bankruptcy  of  the  latter,  were  permitted,  by  an 
intrigue  between  himself  and  a  third  person,  so  to  change 
his  own  situation,  as  to  diminish  or  totally  destroy  the  debt 
due  to  the  bankrupt,  by  an  act  ex  post  factoS'-f 

I  accordingly  continue  in  the  opinion  that  was  given  at 
the  trial,  that  the  note  purchased  by  the  defendant  was  in- 
admissible testimony,  under  his  plea  of  payment,  and  that 
the  defendant  take  nothing  by  his  motion. 

Motion  denied. 


(Supreme  Court.) 


Betts  against  Turner. 


On  the  sale  of  THIS  was  an  action  of  covenant,  and  the  declaration  sta- 
Uabiewhi.Tfo"  tecl  in  substance,  that  John  Baker,  on  the  17th  October, 
venant  by   the  1795  Kave  a  promissory  note  to  William  Hooker,  by  which 

vendorto  pay  the  '  °  1  . 

vendee  a  cer- 
tain sum,  "  if  the  vendee  should  take  all  and  every  legal  step  the  law  directs,  to  prosecute  to 
effect  the  maker  and  payee,  to  wit,  if  the  vendee  and  no  one  in  his  name,  or  in  that  of  the 
maker,  could  recover  judgment  legally,  against  the  maker  on  the  note,  or  against  the  payee, 
in  case  he  had,  at  the  date  of  the  covenant,  or  should  previous  to  the  suit  against  the  maker, 
discharge  the  note  ;"  if,  in  an  action  against  the  maker,  the  payee,  according  to  the  laws  of 
the  country,  go  into  court  and  deny  authorizing  the  suit  by  the  assignee  against  the  maker, 
the  assignee  cannot  maintain  an  action  on  the  covenant  against  the  vendor,  if  by  the  law  ot 
the  country  the  payee  be,  in  such  case,  liable  for  the  amount  without  first  showing  a  legal  en- 
deavour, by  suit,  to  recover  the  amount  against  the  payee.  Covenants  are  to  be  constFued 
not  merely  by  their  letter,  but  their  spirit. 


Betts 
v. 

Turner. 


STATE  OF  NEW-YORK.  363 

he  promised  to  pay  him,  or  his  order,  on  the  1st  day  of  ALBANY. 
April,  1797,  833  dollars  and  33  cents;  that  the  defendant 
sold  the  note  to  the  plaintiff,  to  be  by  him  collected  at  his 
own  risk  and  costs,  as  it  respected  the  ability  of  Bake}'  and 
Hooker,  and  that  the  defendant  covenanted  to  and  with  the 
plaintiff,  to  pay  him  2,000  dollars  when  required,  "  in  case 
the  plaintiff  should  take  all  and  *every  legal  step  as  the  law  ^06 

directed,  to  prosecute  to  effect  Baker  and  Hooker;  to  wit, 
if  the  plaintiff,  and  no  one  in  his  name,  or  in  Hooker's  name, 
could  recover  judgment  legally  against  Baker,'  on  the  note, 
or  against  Hooker,  in  case  he  had,  at  the  date  of  the  cove- 
nant, or  should,  previous  to  the  suit  against  Baker,  dis- 
charge the  note." 

The  declaration  further  stated,  that  Baker  resided  in 
Massachusetts,  and  that  on  the  31st  Juki,  1797,  the  plain- 
tiff sued  Baker  in  Hooker's  name,  according  to  the  laws  of 
Massachusetts;  that  Hooker  came  into  court  and  denving 
that  he  had  ever  authorized  the  suit,  the  court  dismissed  it ; 
that  the  plaintiff  had  taken  all  legal  steps  to  sue  Baker  upon 
the  note,  and  that  he  could  not  sue  upon  it  in  his  own  name, 
either  Baker  or  Hooker ;  that  Hooker  had  never  negotia- 
ted the  note,  so  as  that  any  person  could  sue  upon  it  in  his 
name  but  himself;  and  that  Hooker  had  never  discharged 
the  note. 

To  this  declaration  the  defendant  pleaded,  that  Bakef 
and  Hooker  reside  in  Massachusetts,  and  that  the  note  was 
sold  by  Hooker  to  one  Cole,  and  by  him  to  one  Booth,  and 
by  Booth  to  the  defendant,  who  sold  it  to  the  plaintiff;  that 
such  notes  were  not  negotiable  by  the  laws  of  Massachu- 
setts, so  as  to  enable  the  assignee  to  sue  in  his  own  name^ 
but  that  he  could  sue  in  the  name  of  the  original  payee,  and 
that  if  the  payee  released  the  suit  or  discharged  the  note,  he 
became  liable  to  the  holder,  for  the  amount  of  such  note, 
of  which  law  the  plaintiff,  at  the  time  of  the  delivery  of 
the  note,  had  notice  ;  and  that  the  plaintiff  did  not  prose- 
cute Hooker,  nor  attempt  to  recover  a  judgment  against  him 

3-  k' 


CASES  IN  ERROR  IN  THE 

on  the  note,  as  he  might  and  ought  to  have  done,  according 
to  the  laws  of  Massachusetts. 

*To  this  pica  there  was  a  general  demurrer  and  joinder. 

*  307  Per  Curiam,  delivered  by  Kent,  J.    By  the  covenant  it 

appears,  that  the  plaintiff  was  to  do  a  previous  act,  to  enti- 
tle him  to  maintain  a  suit  on  the  covenant.  This  previous 
act,  like  all  other  stipulations  in  covenants,  must  be  done 
fairly  and  faithfully,  according  to  the  spirit  and  intention  ol 
the  agreement.  It  may  be  proper  to  observe,  as  a  rule  in 
the  construction  of  covenants,  that  they  are  to  be  performed 
according  to  their  spirit  rather  than  their  letter,  "  ut  res  ma- 
gis  valeat  quam  per  eat" 

The  beneficial  end  that  the  parties  had  in  view,  is  to  be 
primarily  regarded  and  enforced ;  and,  therefore,  when  an 
obligee  engaged  to  deliver  up  his  obligation  to  the  obligor, 
by  such  a  day,  and  he,  in  the  mean  time,  put  it  in  suit,  re- 
covered upon  it,  and  then  delivered  it ;  this,  although  a 
compliance  with  the  words  of  the  agreement,  was  held  no 

t  Cro.  EWz.  7.  performance  of  the  i?itent.\  So,  where  A.  covenanted 
with  B.  that  he  should  enjoyaterm  of  six  years,  dischar- 
ged from  tithes,  and  a  suit  was  brought,  after  the  expiration 
of  the  term,  for  the  intermediate  tithes,  it  was  held,  that 
B.  was  as  much  prejudiced  by  a  suit  after  the  term  as  he 
would  have  been  before,  and  that  the  intent  of  the  covenant 
was,  that  he  should  be  freed  from  suit  and  payment ;  the 

*  Cro.  mi.  916.  covenant,  therefore,  broken.J     By  the  same  just  and  liberal 

rule  of  interpretation,  it  is  declared,  that  if  one  covenant 
to  deliver  the  grains  made  in  a  brewhouse,  and  in  the  mean 
time  he  mix  them  with  hops,  so  as  to  render  them  unpalata- 
ble to  cattle  ;  or  engage  to  deliver  so  many  yards  of  cloth, 
and  he  cut  it  in  pieces,  and  then  deliver  it;  or  if  he  cove- 
nant to  leave  the  timber  on  the  land,  at  the  expiration  of  a 

#  308  lease,  and  he  *cut  it  down  and  so  leave  it,§  these,  and 
§  T.  Raym.  464.  numer0U5  other  instances  of  the  like  kind,  to  be  met  with 
IF  See  ISM.  48.  in  the  books, TI  are  all  alleged  to  be  breaches  of  the  cove - 
15V*  nant    because,  the  law  regards  not*  literal  but  a  real  and 


STATE  OF  NEW- YORK.  308 

■faithful  performance  of  contracts,  according  to  the   intent 
of  the  parties. 

These  principles  ought  to  be  kept  steadily  in  view,  as  hav- 
ing an  application  to  the  present  case.  ■         — • 

It  is  pretty  obvious,  that  the  defendant  did  not  intend  to 
pay  the  2,000  dollars,  until  the  plaintiff  had  faithfully  tried, 
and  tried  in  vain,  to  recover  the  amount  of  the  note  from 
Baker  and  from  Hooker.  The  note  was  sold  to  the  plaintiff 
to  collect  at  his  cxvn  risk,  so  far  as  respected  the  ability  of 
Baker  and  Hooker;  and  it  was  a  condition  precedent  to  the 
payment  of  the  money  by  the  defendant,  that  the  plaintiff 
should  take  all  and  every  legal  step,  as  the  law  directed,  to 
prosecute  to  effect  Baker  and  Hooker.  He  did  take  those 
steps  to  prosecute  Baker,  but  not  to  prosecute  'Hooker,  al- 
though the  latter  became  liable  to  him,  for  releasing  the  suit 
he  had   instituted  in  his  name  against  Baker. 

Here,  then,  appears  a  palpable  failure  on  the  part  of  the 
plaintiff,  of  an  act  which  was  necessary  to  entitle  him  to  his 
suit  against  the  defendant ;  I  mean  the  failure  of  taking  the 
steps  by  law  directed,  to  prosecute  to  effect  Hooker  as  well 

as  Baker. 

It  may,  however,  be  objected,  that  the    case    in    which 

Hooker  is  to  be  prosecuted,  is  afterwards  particularly  sta- 
ted in  the  covenant,  and  that  Hooker  was  only  to  be  prose- 
cuted, if  he  had,  at  the  date  of  the  covenant,  or  should, 
previous  to  the  suit  against  Baker,  discharge  the  note ;  and 
that,  never  having  ^discharged  the  note,  the  plaintiff'  was 
under  no  necessity,  by  the    covenant,  of  prosecuting  him.  *  309 

To  this,  I  answer,  that,  although  this  be  the  letter,  it  can- 
not be  the  intent,  of  the  agreement.  The  agreement,  in 
the  first  instance,  provides  generally,  that  the  plaintiff  shall 
prosecute  to  effect  both  Hooker  and  Baker,  and  it  then  pro- 
ceeds to  specify  the  instance  in  which  Hooker  is  to  be  pro- 
secuted ;  to  wit,  if  he  had  then  already,  or  should,  pre- 
vious to  a  suit  against  Baker,  discharge  the  note.  But  the 
rational  meaning  of  the  covenant,  deficient  as  it  may  be  h\ 


309  CASES  IN  ERROR  IN  THE 

perspicuity  and  precision,  cannot  be  otherwise  than  this  ; 
that  the  plaintiff  should  first  prosecute  Baker,  and  if  Hooker 
shoulu  prevent  him  from  recovery  against  Baker,  that  he 
should  then  prosecute  Hooker. 

The  defendant  seems  to  have  contemplated  but  a  single 
case,  in  which  Hooker  could  prevent  a  recovery,  and  that 
case,  which  was  the  discharge  of  the  note,  he  has  specified; 
whereas,  an  interference  in  Hooker,  by  discharging  or  re- 
leasing the  suit,  was  an  equal  impediment  to  a  recovery, 
and  equally  exposed  Hooker  to  a  prosecution. 

The  plaintiff  was  to  take  every  legal  step  to  obtain  a 
recovery,  both  against  Baker  and  Hooker,  but  he  omitted  to 
take  any  step  against  Hooker,  and  now  alleges,  as  his  suffi- 
cient excuse,  that  Hooker  did  not  prevent  a  recovery  against 
Baker  in  the  manner  mentioned  and  expressly  provided  for 
in  the  covenant.  It  is  true,  he  prevented  a  recovery  by 
discharging  the  suit;  but  he  did  not  prevent  a  recovery  by 
*  310  discharging  the  note,  and  he  must  prevent  the  recovery  *in 

the  latter  mode,  and  not  in  the  former  ;  otherwise  he  was 
not  to  be  prosecuted. 

I  dislike  any  such  subtle  distinction,  calculated,  as  it  ap- 
pears to  me,  to  elude  the  end  and  design  of  the  covenant ; 
for  I  cannot  conceive  any  possible  inducement,  on  the  part 
of  the  defendant,  to  stipulate,  that  the  plaintiff  should  pre- 
viously prosecute  Hooker,  if  he  prevented  a  recovery 
against  Baker,  by  discharging,  the  note,  which  would  not 
equally  be  felt,  and  equally  operate,  if  Hooker  prevented  a 
recovery  against  Baker,  by  discharging  the  suit.  And  for 
the  plaintiff  to  pretend,  that  he  was  bound  to  prosecute 
Hooker,  in  the  one  case,  because  it  was  expressly  mentioned 
in  the  covenant,  and  not  bound  in  the  other  case,  because  it 
happened  to  be  omitted,  although  precisely  within  the  same 
reason,  is  for  him  to  construe  the  article  by  its  letter,  and  to 
disri  gard  its  spirit.  It  is,  in  allusion  to  the  cases  mentioned, 
to  deliver  up  the  obligation  by  the  day,  but  in  the  mean  time, 
to  prosecute  and  recover  upon  it.     It  is  to  deliver  the  cloth, 


STATE  OF  NEW-YORK'.  310 

but  after  it  is  cut  to  pieces.     It  is  to  leave  the  timber  on      ALBANY. 
the  land,  but  to  leave  it  prostrate. 

I  am,  accordingly,  of  opinion,  that  the  plaintiff  has  not 
shown,  in  his  declaration,  the  requisite  previous  perform- 
ance on  his  part,  and  that  judgment  ought  to  be  rendered 
for  the  defendant. 

Judgment  for  the  defendant. 


Betts 
v. 

Turner. 


*Frost  against  Carter.  *  311 

FROM  the  circumstances  stated  in  this  case,  it  appeared,  If  the  emioisor 

i        i      i  r     i  i        i   i        i-  c,  °*  a  n0te  Pay  *l 

that  the  deiendant,  on  the  3d  day  or  January,   1792,  gave  tftw    the    dis- 

,        .   .     .  _  .  r  ,   ,.  .  eharte    of    the 

the  plaintiff  a  promissory  note  tor  9,299  dollars  and  44  cents,  insolvent     ma- 
payable  in  90  days  ;  that  the  plaintiff  endorsed  the  note,  and  invent  'luw, 
it  went  into   circulation  ;  that  it  was  not  paid  when  due  ;  JftiSfTBi! 

that  the  defendant  was  afterwards  discharged  under  the  se<iuent.  rfcn.,,,e" 

°  ry    against    the 

insolvent  act,  and,  at  the  time  of  the  discharge,  the  note  maker, 
belonged  to  Archibald  Mercer;  that  subsequent  to  the  dis- 
charge, to  wit,  on  the  1st  July,   1794,  the  plaintiff  paid 
3000  dollars,   took  up  the  note,  and  brought  this  suit  to 
recover  that  money  back  from  the  defendant. 

The  question  upon  these  facts,  was  whether  the  debt, 
now  claimed  of  the  defendant,  was  a  debt  which  the  plain- 
tiff could  have  asserted  as  his  own>  and  have  verified  upon 
oath,  as  a  specific  and  certain  debt  on  the  2d  day  of  March, 
1793,  when  the  defendant  procured  his  discharge?  In 
other  words,  was  it  a  debt .  provable  against  the  estate  of 
the  insolvent? 

Per  Curiam,  delivered  by  Kent,  J.  The  act  of  insol- 
vency, of  the  21st  March,  1788,  in  pursuance  of  which  the 
defendant  obtained  the  discharge  which  he  now  sets  up,  in 
bar  of  the  plaintiff's  right  of  action,  extends  the  discharge 


311 


CASES  IN  ERROR  IN  THE 


ALBANY. 

Frost 

v. 

Carter. 

*  312 


*  313 


to  such  debts,  and  to  such  debts  onlv,  as  are  due'at  the  time 
of  the  assignment  of  the  insolvent's  estate,  and  to  debts 
contracted  for  before  that  time,  though  payable  afterwards. 
Those  debts  must  be  specific,  and  certain  sums  of  money, 
to  which  the  creditor  can  make  oath,  as  being  ^justly  due, 
or  to  become  due  at  some  specified  time.  Unless  the  cre- 
ditor, at  the  time  of  the  assignment^  be  able  to  produce  and 
verify  such  debt,  in  such  manner,  he  would  not  be  entitled 
to  receive  from  the  assignees,  his  dividend  of  the  insol- 
vent's effects,  nor  would  he  be  barred  from  his  future  action 
against  the  insolvent. 

Therefore,  although  the  plaintiff  in  the  present  suit  was, 
as  I  take  for  granted,  on  non-payment  of  the  note  by  the 
defendant,  duly  fixed  as  endorsor,  and  although  this  was- 
prior  to  the  defendant's  discharge,  yet,  until  he  had  actually 
paid  the  holder  of  the  note,  and  taken  it  up,  he  could  not  be 
said  to  have  a  certain  and  ascertained  debt  due  to  him  from 
the  defendant.  His  demand  upon  the  defendant  depended 
upon  the  defendant's  final  non-payment  of  the  note,  and  his 
payment  of  it  for  him.  He  stood,  in  respect  to  the  defend- 
ant, in  the  relation  of  a  surety  only ;  and  what  portion  of 
the  note,  if  any,  short  of  the  whole  sum,  the  defendant  him- 
self might  be  able  to  pay  the  holder,  was  a  matter  altoge- 
ther uncertain.  So  that  the  plaintiff,  until  he  paid  the  3,000 
dollars,  and  took  up  the  note,  had  not  any  specific  and  cer- 
tain debt  due  to  him  from  the  defendant,  and  as,  therefore, 
this  debt,  which  is  now  demanded,  accrued  subsequent  to 
the  defendant's  discharge,  and,  in  consequence  of  an  actual 
payment  by  the  plaintiff,  the  plaintiff  was  not  entitled  to 
claim  his  debt  from  the  assignees  of  the  defendant,  and, 
consequently,  the  discharge  of  the  defendant  cannot  be  a 
bar  to  a  recovery  in  the  present  suit. 

*This  construction  of  the  operation  of  our  insolvent  act, 
is  the  same  with  that  of  the  Etiglish  bankrupt  law  in  consi- 
mili  casu. 

The  stat.  4  and  5  Ann.  c.  17.  which  was  continued  by 
the  stat.  of  5  Geo.  II.  c.  30.  sec.  7.  extends  the  discharge  of 
4 


STATE  OF  NEW- YORK.  ,31. 

%  {he  bankrupt  to  all  debts  by  him  due  or  owing  at  the  time  he 
became  a  bankrupt,  and  the  stat.  of  7  Geo.  I.  c.  31.  extends 
it  to  debts  contracted  before  the  bankruptcy,  though  payable 
after.  These  statutes,  in  this  respect,  are  to  the  same  effect, 
and  almost  precisely  in  the  same  words  with  our  act  of  in- 
solvency, when  it  declares  the  force  and  extent  of  the  insol- 
vent's discharge. 

B\  the  English  decisions  upon  those  statutes,  it  has  been 
frequently  determined,  and  seems  to  be  a  rule  permanently 
settled,  that  if  the  creditor,  at  the  time  of  the  bankruptcy, 
had  not  a  certain  debt  due,  to  which  he  could  attest  by  oath,  .1  mis.  H.  269. 
and  which  he  could  bring  in  under  the  commission  of  bank-  }{  Dumf.   isai 
ruptcy,  he  is  not  barred  by  the  bankrupt's  discharge;  and,  l  IL  BUick- Ci0 
in  like  manner,  that  a  surety,  although  he  be  liable  before, 
yet  if  he  does  not  actually  pay  the  debt  till  after  the  act  of 

bankruptcv  be  committed,  he  then  cannot  prove  it  under  :he  3  lViIe-  3i~ 
\  r  #  '  "  r  Cwp.  $26. 

commission,  and  may  resort  to  the  bankrupt.  Dwrnf.  5'jy 

It  has  been  objected,  and  with  some  plausibility,  to  this 
doctrine,  that  if  a  debt  be  due  at  the  time  of  the  assignment 
to  an}-  one  who  might  have  proved  it,  it  must  be  done  away 
by  the  discharge  ;  for  that  the  insolvent  is  discharged  from 
all  his  then  di  bts  to  whomsoever  they  may  belong,  and  that 
if,  when  discharged  from  the  action  of  one  creditor,  he  were 
to  remain  liable  *at  the  suit  of  another  for  the  same  debt,  it  3** 

would  be  no  discharge  at  all.     These  objections  were  raised 
and  overruled  in  the  cases  of  Taylor  v.  Mills  and  Magnall^  \  Co-uf.  5-a. 
and  of  Brooks  v.  Rogers.%     The  answer  appears  to  me  to  *  i   //.  Biacl. 
be  plain  and  sufficient,  that  where  a  plaint  id"  cannot  prove  a 
debt  till  he  has  actually  paid  the  money,  and  the  payment  be      >. 
of  the  proper  debt  of  the  insolvent,  and  after  the   assign- 
men  of  his  estate,  the  cause  of  action  in  such  case  arises 
after  *he  insolvency,  although  upon  a  pre-existing  ground, 
and  as  t\e  cannot  exhibit  his  debt  to  the  assignees,  because 
there  was  no   sum  due,  to  which  he  could  attest  when  the 
assignment  vas  made,  it  is  highly,  nay,   indispensably  just, 
that  he  should  resort  to  the  insolvent  himself. 


CASES  IN  ERROR  IN  THE 

I  am,  accordingly,  of  opinion,  that  judgment  be  rendered 
for  the  plaintiff. 

Judgment  for  the  plaintiff. 


(Supreme  Coukt.) 
Jackson,  ex  dem.  Jane  Van  Alen,  against  Rogers* 
A  parol  gift  of        THIS  was  an  action  of  ejectment  for  a  store  arid  lot  at 

1'IIhIs      CPC3t.CS  • 

only  a  tenancy  Kinderhook,  on  a  demise  laid  1st  June,  1795.     The  apph- 
doneeiease  and  cat'on  was  to  set  aside  a  verdict  for  the  plaintiff,  and  grant 

the  donor  do  not    a  new  tYyd^       The  factg  Qf  t^e  case  were  tnese  . 
ratify    his    act, 

the  mere  per-       Lawrens  f.  Van  Alen  was  in  possession  of  the  premises 

mitting  the  les-  ^  *  * 

see  to  build  and  for  a  period  of  more  than  30  years  before  the  bringing  of 

enjoy  under  the 

term,  will  not  the  present  suit.     John  C.  Holland  married  his  daughter, 
nor  from  legacy  an^  was  a  drunken  dissipated  character,  frequently  request- 
ianTu'and  his  de-  *nS  Lawrens  for  a  deed  of  the  premises,  and  was  as  often 
vereewUhouteno-  re^usetl :  at  ^ast»  ne>  Lawrens,  said  to  him,  and  but  once, 
ticeto  quit.         *i  we\\  John,  *you  may  take  the  kraal,  (meaning  the  premi- 
ses,) and  I  will  deduct  60/.  from  your  wife's  portion  ;"  no 
writings  were  signed,  and  these  expressions  were  before 
building  the  store  in  question. 

Holland  afterwards  leased  the  premises  to  McMechen  for 
nine  years,  and  McMechen,  in  consideration,  was  to  build  a 
store  on  them;  he  did  so,  and  at  the  time  he  began  to 
build,  Lazvrens  had  grain  on  the  premises.  Lawrens  was 
at  first  dissatisfied  when  he  heard  Holland  had  made  the 
lease,  but  afterwards  was  satisfied,  saying  it  would  beneAt 
Holland's  children.  The  lease  was  made  in  the  year  1735. 
In  August,  1794,  Holland  (the  first  lease  being  out)  m*de  a 
second  lease  to  McMechen  (the  partner  of  the  defendant) 
for  five  years,  at  the  annual  rent  of  30/.  Lawrens  heard  of 
the  second  lease  from  strangers,  and  was  dissatisfied  with 
it,  particularly  when  he  found  the  rent  was  not  to  benefit 
Holland's  children.     He  frequently  talked  of  taking  the 


STATE  OF  NEW-YORK.  ,  315 

property  into  his  own  hands,  and  afterwards  devised  the  ALBANY. 

lands  to  the  lessor  of  the  plaintiff  for  life,  by  will  dated  19th  ^.^^ 

June,  1790.     Laxvrens  died  in  May,  1795  ;  the  action  was  Ro*;rs 

brought  without  any  notice  to  quit.  '      " 

The  question  on  these  facts  submitted  to  the  court  was, 
ought  the  lessor  of  the  plaintiff  to  recover  ? 

Per  Curiam,  delivered  by  Kent,  J.  In  the  argument 
for  a  new  trial  in  this  cause  on  behalf  of  the  defendant,  it 
was  contended  that  the  lessor  of  the  plaintiff  ought  not  to 
recover  : 

1st.  Because  the  lease  from  Holland  to  McMechen 
amounted  to  a  disseisin  of  Laxvrens  J.  Van  Alen,  and  de- 
stroyed his  capacity  to  devise. 

2d.  That  the  second  lease  from  Holland  to  McMeckert, 
was  still  subsisting  at  the  commencement  of  the  suit,  and 
was  a  lawful  impediment  to  the  plaintiff's  recovery. 

*3d.  That  the  defendant  was,  at  all  events,  to  be  deemed  *  316 

a  tenant  from  year  to  year,  and  so  entitled  to  six  months' 
notice  to  quit. 

1st.  To  constitute  an  actual  disseisin,  or  one  in  fact,  i    Burr.  79.  l 

Salk.  246. 
there  must  be  a  tortious  entry  and  an  actual  expulsion.     ISiO 

such  thing  appears,  or  was  pretended  in  the  present  case, 
nor  was  there  a  disseisin  admitted  by  election.  The  dis- 
tinction of  a  disseisin  by  election,  as  contradistinguished 
from  diss-jisin  in  fact,  was  taken  for  the  benefit  of  the  owner  '  Burr.  11a 
of  the  lands,  to  extend  to  him  the  easy  and  desirable  remedy  24o. 
of  assise,  instead  of  the  more  tedious  remedy  of  a  writ  of 
entry.  Whenever  an  act  is  done,  which  immediately,  and 
of  itself,  creates  an  actual  disseisin,  it  is  still  taken  to  be  an 
actual  disseisin,  notwithstanding  the  introduction  of  the 
doctrines  of  disseisin  by  election ;  as,  if  a  tenant  for  years, 
or  at  will,   should   enfeoff  in  fee  ;  and  on  the  other  hand,  Santera  on 

.  .....        Usea,  24(1,  Mf« 

those  acts  which  are  susceptible  of  being  made  disseisins  by  242.       /fuller's 
....        ...  .  ,  C9.Lti.5S0.bM. 

election,  are  in  fact  no  disseisins  till  the  election  makes  them  ys.i.   Harg.  Cm. 

so  ;  as  if  a  tenant  at  will,  instead  of  making  a  feoffment  in 

fee,  should  only  make  a  lease  for  years. 

t     L  i 


316  CASES  IN  ERROR  IN  THE 

ALBANY.  No  such  election  was  ever  made  in  the  present  case,  and 

consequently  there  was  no  disseisin.  Making  a  devise  has 
been  deemed,  in  a  similar  case,  an  intimation  of  an  election, 
not  to  be  disseised  ;  and  if  Holland  was  tenant  at  will,  (and 


*  317 


j"m  ™\lhm:  no  8reater  interest  can  be  inferred  in  him,  because   no 
1 12, 113.  Co-wu.  neater  interest  can  be  created  bu  parol,)  a  lease  for  vears  by 

C93.  " 

i  Burr.  UI.     .  him  can  be  no  disseisin,  unless  the  true  owner  elect  to  make 
it  so,  nor  does  it  destroy  his  capacity  to  devise. 

These  are  briefly  the  settled  distinctions  between  dis- 
seisins in  fact,  and '  disseisin  by  election.  They  were 
i  Burr.  6o.  generally  hinted  at  or  brought  into  view,  commented  *upon 
and  explained,  in  the  case  of  Atkins  and  Horde,  one  of  the 
most  learned  and  elaborate  judicial  discussions  on  a  ques- 
tion of  real  property  to  be  met  with  in  modern  times,  and 
they  are  likewise  historically  and  ingeniously  illustrated  by 
y.  W.  Butler ;  in  one  of- the  notes  to  his  edition  of  Coke  upon 
Littleton. 

I  shall  therefore  pass  the  whole  of  this  doctrine  by,  as 
having  no  influence  on  the  present  case,  nor  should  I  have 
noticed  it  at  all,  had  not  the  counsel  for  the  defendant 
appeared  to  rely  much  upon  it,  and  to  consider  it  as  strong 
ground  in  the  cause. 

2d.  In  respect  to  the  existence  and  force  of  the  second 
lease  from  Holland  to  McMcchen.  I  would  observe,  that 
notwithstanding  the  gift  of  the  premises  to  Holland  by 
Lawrens,  he  had  never  any  greater  interest  in  them  than  an 
estate  at  will,  because  Lawrens,  to  whom  the  premises  be- 
longed, never  alienated  them  to  him  by  deed  or  writing, 
nor  made  any  parol  demise  of  the  same  for  a  term  not  ex- 
ceeding three  years,  and  reserving  a  rent  thereon.  Holland 
was,  consequently,  by  the  force  and  effect  of  the  statute  of 
frauds,  but  a  tenant  at  will,  when  he  made  the  first  lease  to 
jlcMechen ;  and  when  he  made  the  second  lease,  he  was 
still  but  a  tenant  at  will,  and  so  had  no  authority  to  make 
either  lease,  because  such  authority  resides  not  in  a  tenant 
at  will ;  nor  can  a  parol  gift  of  land  in  fee  operate  as  an 
authority  to  make  leases,  because  the  statute  of  frauds  de- 


STATE  OF  NEW- YORK.  317 

clares  expressly  what  shall  be  the  operation  of  such  parol     ALBANY. 
grant ;  it  shall    "  have  the  force  and  effect  of  leases  or    Vs-—V-"*l-/ 
estates  at  will  only,  and  shall  not  have  any  other,  or  greater        Jackson 
force  or  effect."     I  therefore  do  not  regard  any  intimation        Hogeis- 
that  may  be  given  by  the  circumstances  of  the  subsequent  1    Dximj.    94. 
assent,  either  tacit  or  express,  of  Lawrens,  to  either  the  first  nZis.  50. 7 
or  second  lease  ;  because  it  is  a  settled  doctrine  that  no  E.'vli.   5'    r° 
subsequent  assent  will  make  good  a  void  lease,  although  sub-  *  318 

sequent  acts  may  operate  as  a  new  grant.  Both  the  leases 
to  McMechen  were,  therefore,  from  the  beginning,  null  and 
void,  because  made  by  a  tenant  at  will  who  has  no  capacity 
to  grant. 

3d.  The  third  point  is,  whether  the  defendant  was  enti- 
tled to  notice  to  quit. 

Where  the  holding  is  not  for  a  determinate  period,  but 
from  the  reservation  of  an  annual  rent,  or  from  other  cir- 
cumstances, is  susceptible  of  being  construed  into  a  holding 
from  year  to  year ;  in  such  cases  the  courts  have  adopted  2  Black.  Jtep. 
as  a  rule  favourable  to  the  interests   of  both  landlord  and 
tenant,  that  neither  party  shall  determine  the  lease  without 
six  months'  previous  notice  to  the  other,  of  that  intention  ; 
but  where  the  lease  is  for  a  definite  period,  or  determinable  j  Durnf.  id. 
on  a  certain  event,  no  notice  is  requisite,  as  both  parties  are 
apprized  of  the  termination.     So  if  the  tenant  be  strictly  a 
mere  tenant  at  zvill,  as  where  one  enters  under  a  void  lease  ; 
there,  I  apprehend,  no  notice  is  necessary.     The  Nisi  Prius 
decision  in  the  case  of  Goodtitle,  ex  dem.  Adeare  v.  Prentice,  EsP-  Ar-446. 
before  Gould,  J.  in  1790,  is  expressly  to  this  point. 

In  the  present  instance  the  defendant,  the  partner  of  Cvo.  E.  830.  s 
McMechen,  entered  under  a  void  lease,  and  became  a  mere  ji°j/s  ^ 
trespasser,  if  Lawrens  chose  to  make  him  so,  and  so  con- 
tinued to  the  bringing  of  the  suit ;  no  subsequent  agreement 
was  made,  no  actual  rent  was  stipulated  for  between  him 
and  Lawrens,  none  was  demanded  or  paid.  Lawrens  did 
nothing  to  recognise  *him  sis  his  tenant,  and  to  creatr  be-  *  319 

tween  them  the  relation  of  landlord  and  tenant,  and  conse- 
quently no  notice  was  necessary. 


CASKS  IN  ERROR  IN  THE 

I  am,  accordingly,  of  opinion,  that  the  defendant  take  no 
thing  by  his  motion. 
e  ve°p  c  Judgment  for  the  plaintiff. 

The  Sessions  of 
Chenango. 


(Supreme  Court.) 

The  People  against  The  Sessions  of  Chenango. 

The  Sessions       THIS  was  an  application  for  a  mandamus,  forbidding  the 
ne^triafcmthe  Sessions  of  Chenango  from  proceeding  on  a  new  trial  they 

merits ;    if  they   l     1  orantprl 
do,  a  mandamus   natl  granleo- 
will    go    forbid- 
ding     them    to 

pipoeed.  Per  Curiam,  delivered  by  Kent,  J.     Let  the  mandamus 

go.     The  sessions  cannot  grant  a  new  trial  upon  the  merits* 
It  is  a  power  not  exercised  by  this  court,  after  verdict  in 
cases   of  felony,  and  perhaps  it  is  expedient   it  should  not 
be.     This  court  had  by   its  original  constitution  by  ordii 
nance,   the  superintending  control  of  all   inferior  jurisdic- 
tions within  the  state,  and  this  power  has  never  been  taken 
away.     It  has  been  from  time  to  time  recognised  by  law, 
and  in  constant  and  vigilant  exercise.     All  courts  within 
the  several  counties  have,  from  the  first  foundation  of   our 
judicial  system,  been  regarded  by  law  and  by  practice  as 
inferior  courts  ;  they  can  be  compelled  to  duty  by  a  manda-. 
f  Prohibitions  mils  ;  they  can  be  restrained  from  usurpation  by  prohibition.^ 
jmtidZ   when"  The  causes  and  pleas  before  them,  can  be  arrested  and  re- 
JcunSurju-  moved  by  habeas  corpus  or  certiorari,  and  their  judges  can 
risdiction.  They  fre  attacnei±  brought  before  this  court,  and  punished  for  dis- 

•\vill  lie  to  courts-  ^  '  o  * 

piarOal.  See  the  obedience.     All  these  are  distinguished  and  essential  marks 

pase  ot  Grant,  2  . 

H.  Black.  69.  of  supremacy  in  the  one  court,  and  of  inferiority  in  the 
Mother ;  they  are,  therefore,  within  the  reason  and  meaning 
of  the  law,  inferior  courts,  and  such  courts  are  not  entrusted 
by  law,  with  the  power  of  setting  aside  verdicts  of  juries 
upon  the  merits.  It  has  been  the  uniformly  received  usage 
and  understanding  on  the  subject,  until  very  lately,  that  ths,t 


STATE  OF  NEW-YORK.  320 

power  was  exclusively  confided  to  this  court ;  it  can  neither  Albany. 
be  taken  from  this  court,  nor  assumed  by  the  sessions  with-  The  People 
out  express  words.  The  >^|oM  of 

There  are  strong  reasons  for  the  law  withholding  the  Chenango, 
power  from  the  courts  of  general  sessions  of  the  peace.  All 
the  justices  of  the  peace,  within  the  county,  are  judges  of 
the  court.  This  renders  it  a  very  numerous  tribunal,  and 
divides  and  weakens  the  responsibility  of  the  members. 
The  justices  are  laymen,  and  cannot  be  supposed  to  have 
been  taught  or  trained  in  the  science  of  law.  The  power 
of  awarding  new  trials  on  the  merits,  is  a  power  necessarily 
resting  in  sound  legal  discretion.  The  reasons  of  the  exer- 
cise of  that  discretion,  are  not  stated  on  the  record,  and  are 
not  susceptible  of  review  by  this  court.  The  power  may 
be  grossly  abused ;  different  principles  and  contradictorv 
practice  may  be  assumed  in  different  courts  ;  verdicts  may 
be  set  aside,  ad  infinitum,  till  juries  are  worried  into  sub- 
mission ;  they  might  be  set  aside  where  the  prisoner  is 
acquitted,  as  well  as  convicted,  and  the  power  thus  unli- 
mited and  unreviewed,  might  go  to  the  destruction  of  trial 
by  jury;  to  overturn  the  rights  of  the  citizen  ;  to  shake  the 
stability  of  government,  and  destroy  all  system  and  harmony 
in  our  jurisprudence. 

I  am,  with  perfect  satisfaction,  of  the  opinion,  that  this 
great  and  transcendant  trust,  rests  solely  with  this  court ; 
a  court  which  the  constitution  and  law  *has  taken  care  so  to  *  321 

organize,  as  to  contemplate  it  fit  and  competent,  for  the 
due  and  safe  exercise  of  this  very  delicate  power.  We 
cannot  alienate  any  part  of  our  trust  ;  we  are  responsible 
for  its  safe  keeping,  and  that  no  waste  be  committed  on  a 
power  we  hold  for  the  security  of  our  citizens,  in  their 
liberties  and  estate. 


321  GASES  IN  ERROR  IN  THE 

(Supreme  Court.) 

Lodge  against  Phelps. 

An  action  is  THE  question  in  this  case  was,  can  the  assignee  of  a 
wr'coirS'on  "a  promissory  note  given  in  Connecticut  maintain  a  suit  upon 
5SSJTSS  Sf-  »«  here  in  his  own  name,  since  he  is  not  permitted  to  do  so 

ute  by  the  hold-    tL  ? 

er,  though  made    ""'i  "  * 

in    Connecticut, 

where    the    suit  -r        mi  i 

must  he  in  the       per  Curiam,  delivered  by  Kent,  J.     1  hat  personal  con- 

ghmf  payee!  "*"  tracts,  just  in  themselves,  and  lawful  by  the  law  of  the  land 

where  made,  are  to  be  fully  enforced  according  to  the  in- 

474  fi™  i7k  *ent  of  them'  notwithstanding  any  change  of  habitation  by 

C.  *4i.  i  Slack.  ttie  parties,  is  a  principle  of  justice  and  social  policy  which 

258.'  7  'bumf,  ought  every  where  to  be  received  and  supported.     But  the 

admission  of  the  lex  loci  contractus  can  have  reference  on- 

„  \Ersh  i7 *•  lv  to  the  nature  and  construction  of  the  contract,  and  not 

»42-  to  the  mode  of  enforcing  it  ;  for  every   country   must  and 

will  have  precedents  and  judicial  forms  peculiar  to  itself, 

and  under  the  solemnity  of  these  forms  will  enforce    con* 

tracts  according  to  their  true  intent  and  spirit. 

The   note  on  which  the  present  suit  was    brought,  was 
made  payable  to  the  payee  or  his  order,  and  he  ordered  the 
money  to  be  paid  to  the  plaintiff  ;  the  plaintiff,  therefore, 
by  the    rules  of    equity,   not   only    in    Connecticut,    but 
*  322  in  every  country  where  equity  is   known,  *is   entitled  to 

receive  the  money  in  preference  to  the  original  payee. 
What  just  reason  can  there  then  be,  that  the  plaintiff 
should  not  be  permitted  to  avail  himself  here  of  the  forms 
and  remedies  prescribed  by  our  laws,  and  to  sue  directly 
in  his  own  name  for  the  money,  but  should  rather  be  compel- 
led, agreeably  to  the  usage  of  Connecticut,  to  use  the  name 
of  the  original  payee  as  a  mere  nominal  plaintiff,  or  drama- 
tis  persona  ?  If  the  defendant  has  any  defence  authorized 
by  the  law  of  Connecticut,  let  him  show  it,  and  he  will 


STATE  OF  NEW-YORK.  322 

be  heard  in  the  one  form  of  action  as  well  as  in  the  Albany. 
other.  Agreeably  to  the  principle  I  have  laid  down,  I  am 
for  allowing  him  ever)'  defence  that  he  would  have  been 
entitled  to  make  in  Connecticut,  had  the  note  been  'sued 
there  in  the  name  of  the  original  payee  ;  and  as'long  as  this 
can  be  done,  I  do  not  perceive  any  sufficient  reason  for 
turning  the  plaintiff  round  to  another  suit.  To  permit  in- 
novations  upon  our  forms  of  action,  when  not  necessary, 
may  lead  to  inconvenience. 

Judgment  for  the  plaintiff. 


(Supreme  Court.) 
Covenhoven  against  Seaman  and  others. 
THIS  was  an  action  of  debt  on  recognisance,   in  which  If  a  recognisance 

in  a  iwmine  re- 

the  defendants  bound  themselves  to  the  plaintiff  in  100/.  piegiando  be, 
that  a  certain  Jacob  Jones,  whom  the  plaintiff  claimed  and  claimed,  should 
detained  as  his  slave,  and  who  had  sued  out  his  writ  of  f^^nd  "person- 
homine  replegiando,  should  prove  his  liberty  in  the  most  *^rl  "'^"prn^ 
proper  and  expedient  way  and  means,  and  should  personally  n'.c",efi.ih!s  J"!? 
appear  in  this  court,  and  his   suit  in  that    behalf  prosecute  forfeited  i>y  the 

'  appearance    and 

IVlth  effect,  surrender  of  the 

The  plaintiff  averred  in  his  declaration,    "  that  the  said  So„   claiming, 
Jacob  did  not  prove  his  liberty,  nor  prosecute  his   *suit  in  |Je  ^e  on  suc£ 
that  behalf  with  effect,  but  suffered  judgment  as  in  case  ofs^^er  ac' 
7ionsuit,  to  be  e^red  against  him  for  not  proceeding  to  *  323 

trial." 

The  defendants  by  their  plea  stated,  "  that  after  the  said 
judgment  of  nonsuit,  the  said  Jacob  did  appear  in  this  court, 
and  then  on  the  prayer  of  the  plaintiff  surrendered  himself 
to  him,  who  accordingly  accepted  him,  and  that  the  de- 
fendants have  since  paid  to  the  plaintiff  his  costs  of  suit.'1 
To  this  plea  there  was  a  general  demurrer  and  joinder* 


323 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Covenhoven 

v. 

Seaman  and 

others. 


|  Carllu  519. 


Per  Curiam,  delivered  by  Kent,  J.  The  defendants  by 
this  recognisance,  and  which  appears  to  have  been  taken 
agreeably  to  precedent,  undertook  for  three  things. 

1st.  That  Jacob  Jones  should  prove  his  liberty  in  the 
mcst  expedient  way. 

2d.  That  he  should  personally  appear*  in  this  court. 

3d.  That  he  should  prosecute  his  suit  in  that  behalf  with 
effect. 

Instead  of  this  it  appears  that  Jacob  Jones  has  not  prov- 
en his  liberty,  nor  prosecuted  his  suit  with  effect,  but  has 
suffered  judgment  to  be  entered  against  him  as  in  the  case 
of  nonsuit,  and  has,  at  the  prayer  of  the  plaintiff,  surrender- 
ed himself  to  him. 

The  condition  of  this  recognisance  has  certainly  not  been 
complied  with  ;  a  party  submitting  to  a  nonsuit,  does  not 
prosecute  a  suit  to  effect  ;f  nor  if  the  writ  be  abated  for 
any  cause,  will  it  save  the  recognisance,  unless  another  writ 
be  issued  out  with  due  diligence.  The  case  given  in  Fitzher- 
t  jv:  B.  68.  a.  bert%  is  closely  analogous  to  the  present.  "  In  a  homine 
replegiando,  the  plaintiff  was  bound  in  a  recognisance  in  a 
certain  sum  of  money  to  the  defendant's  use  that  he  would 
sue  him,  *cwn  effectu  ;  and  if  the  writ  be  abated  for  any 
cause  yet  he  ought  to  sue  another  writ  for  that  taking,  &c. 
otherwise  he  shall  forfeit  his  recognisance.     H.  8.    H.  4. 

The  only  question  that  can  be  raised  in  this  cause,  is 
whether  the  surrender  to  the  plaintiff  is  a  discharge  from 
the  recognisance.  I  find  no  authority,  nor  any  reason  to 
think  so  ;  there  were  good  inducements  for  the  stipulations 
in  the  recognisance  that  a  suit  should  be  prosecuted  to  ef- 
fect, and  the  question  of  the  freedom  or  servitude  of  Jacob 
7 ones  judicially  determined.  It  would  either  silence  the 
unjust  pretensions  of  the  plaintiff,  and  forever  deliver  the 
man  from  bondage,  or  it  would  quiet  him  in  the  lawful  pos- 
session of  his  property.  The  surrender  of  Jones  to  the 
plaintiff,  and  his  acceptance  of  him,  leaves  the  question  still 
undetermined. 


*  324 


k 


STATE  OF  NEW-YORK.  324 

I  am,  therefore,  of  opinion,  that  the  plea  is  bad,  and  that  AfcBANY 

judgment  be  rendered  for  the  plaintiff.  v-*p^^ 

Judgment  for  the  plaintiff.  \umu\ 


(Supreme  Court.) 
Judah  against  Randal. 


'o 


THIS  was  an  action  on  a  policy  of  insurance  in  the  Under  a  policy 
usual  form,  but  free  from  average,  on  a  chariot  to  be  car-  "Vcetromave! 
rkd  on  deck.  "P»"  .lmt   ia 

■which    jellisoris 

On  the  voyage  the  box  was  thrown  overboard  in  a  storm  XUilke  °"e  of  the 

perils  insured  a- 

to  lighten  the  vessel ;  she  afterwards  arrived  safe    with  die  gainst,  if  the  box 

.    .  r    ,         ,  vt  the  chariot  be 

remaining  parts  ol  the  chariot.  thrown     over- 

It  appeared  the  box  is  ordinarily  estimated  at  two  thirds  |t  „  a'totanoM, 
of  the  price  of  the  whole  chariot.     Verdict  for  the  plaintiff,   jj^  h^ueJf 

as  for  a    total  loss  of  the  chariot,   subject  to  the  opinion  bandoning,  to  re- 

J  ■  cover    as    such, 

of  the  court  on  the  following  question  :   *"  Whether  there  though  the  car- 

.  .  riage  bo  on  deck, 

hath    been    such  a  loss  as  'to  make    the    insurer  liable  ?  #  325 

if  so,  the  verdict  to  stand  ;  if  not,  to  be  set  aside,  and  the 

defendant  to  take  judgment  as  in  case  of  nonsuit." 

Per  Curiam,  delivered  by  Benson,  J.  The  very  state- 
ment of  the  question  implies  it  to  be  admitted  by  the  parties, 
and  which  is  certainly  the  case,  that  the  only  question  be- 
tween them  is,  whether  the  loss  is  to  be  deemed  a.  total  loss, 
or  only  a  partial  or  average  loss  of  the  chariot  ?  By  the  ex- 
press terms  of  the  policy,  jettison  was  one  of  the  perils 
which  the  insurer  took  upon  himself;  but  at  the  same  time, 
the  insurance  being  also  expressly  free  from  average,  the 
jettison  must  not  be  a  partial  or  average  loss  only,  but  must 
amount  to  a  total  loss  of  the  thing  insured,  so  that  the  in- 
quiry (and  which  is  impliedly  admitted  in  the  question  sub- 
mitted to  the  court  as  stated  between  the  parties)  is,  had 
the  plaintiff  a  right  to  abandon  to  the  defendant  the  rcma'm- 

3   M 


Juflah 

v. 
Randal. 


325  CASES  IN  ERROR  IN  THE 

ALBANY..      ing  parts  of  the  chariot  which  were  saved,  and  sue  as  for  a 
total    loss?   ]My  opinion  is,  that  he  had. 

The  part  lost  exceeded  more  than  half  the  value  of  the 
whole  chariot,  the  flung  insured.  The  box  being  lost,  the 
chariot  cannot,  with  any  propriety,  be  considered  so  to  have 
arrived  in  specie  as  that  it  required  to  be  repaired  only  to 
have  again  become  a  whole  chariot.  With  respect  to  a 
chariot  and  every  other  wheel-carriage  having  a  box,  the 
seats  for  the  persons  to  be  conveyed,  wheels,  the  perch  with 
the  axle-trees,  springs  and  Other  parts  affixed  to  it,  and  the 
pole  or  shafts  are  sometimes  collectively  denominated  the  car- 
riage-part, as  distinguished  from  the  box  and  its  immediate 
fixtures.  If  a  wheel,  or  any  other  part  of  the  carriage-part 
should  be  lost,  or  be  so  injured,  as  to  be  wholly  unservicea- 
32S  ble,  and  therefore  a  new  part  become  necessary  in  the  place 

of  the  part  so  lost  or  injured,  the  chariot  would  be  said  to 
\k  repaired  only  ;  but  if  the  box  should  be  lost,  or  be  so  in- 
jured, it  could  not,  with  propriety,  be  said  that  the  chariot 
was  repaired  by  a  new  box,  it  would  be  considered  as  a 
new  chariot,  but  that  the  old  carnage-part  was  made  to 
serve.  The  case  of  a  vessel,  rtat  by  the  plaintiff's  coun- 
sel, is  perfectly  analogous  and  just.  There  may,  as  be- 
twen  insured  and  insurer,  be  a  total  loss  of  the  vessel,  al- 
though ail  the  spars,  sails  and  rigging  may  be  saved.  A 
new  hull  may  be  built  and  designedly  of  a  form  and  bur- 
then so  as  to  be  adapted  to  the  spars,  sails  and  rigging  sa- 
ved without  any  alteration  in  them,  and  be  fitted  out  with 
them  accordingly.  This  would  not  restore  the  identity  of 
the  vessellost;  as  by  the  loss  of  the  hull  the  vessel  is  lost ; 
so   by   the  loss  of  the  box  the   chariot  ceased  to  exist  in 

specie.  m 

Judgment  for  the  plaintiff, 


a»v« 


I 

J  STATE  OF  NEW- YORK.  32& 

J       * 

s  (Court  of  Errors.) 

s 

I 

s       Cuyler   and    others,   Appellants,  against  Brack   and 
■  —i*  others,  Respondents. 

THE  appellants'  bill  in  the  court  of  Chancery  set  forth :    WTiere  several 

.  *  patentees    bear, 

1st.  A  patent  or  the  2d  June,  1-688,  to   Van  Rensselaer,  in  equal  propor- 

Van  Cortlantd,   Van  Ness,  and  G.    T.    Van  Vcchten,  for  the  pense  of  obtain 

.        i        11     i     rr     •    i  i  in>'  ■  patent,  and 

land  called  Hosick  ;  and,  bv&lhe  retiui  of 

That  no  tenancy  in  common  being  expressed,    the  estate  jjje«»efce»!it«p. 

atlaiv  was  of  course  in  joint-tenana/.  pears  they  inten- 

•'  J  deil  to  purchase. 

*2d.  The  will  of  G.  T.  Van  Vcchten  of  the  12th  March,  in  common,  they 

willbe  take 
1703, 1704-,  devising  his  farm,  &c.  and  all  his  residuary  real  nants  in  common 

,  .  cv    /  i    rr   >    i  •  ami  not  as    jnint- 

estate,  to  his  sons,  Johannes  and  Volchert,  as  tenants  m  com-  tenants,  though. 

I  .1 u  the  patent  be   t>> 

mon,  in  equal  parts.  lhem  jfiiiit|v   A 

3d.  The  deaths  of  Van  Rensselaer  and  G.  T.  Van  Vcchten,  J^Sffrf"  S 

before  severance  of  the  joint-tenancy.  intent  of  a  par- 

J  r  chase,  is    a    cm- 

4th.  A  conveyance,  alterwards,  oi  the  18th  October,  1705,  »eyaneewith no- 
from  r«/J  iV>55  and  Van  Cortlandt,  the  surviving  patentees,  grantee    takes 
to  Johanner,  as  the  son  of  G.  T.  Van  Vcchten,  which,  after  hi.pikd  as  well 
reciting  the  patent,  further  recites,  that  the  lands  were  pur-  M  e*pPejjTa27 
chased  from  the  Indians,  and  the  patent  obtained  at  the  joint 
and  equal  expense  of  the  patentees  ;  that  it  was   their  true 
Intent,  purpose,  and  meaning,    that   they    should    hold   as 
,  tenants  in   common,    without  any  advantage  by  reason  of 
joint-tenancy  or  survivorship.     That  by  the  death  of  G.   1\ 
Van  Vechten  and  Van  Rensselaer,  before  partition  or  any  act 
to  destroy  or  cut  off  the  right  of  survivorship  by  reason  of 
the  joint-tenancy,    according  to  such  true   intent,    purpose 
and  meaning,   Van  Ness  and  Van  Cortlandt,  as    survivors, 
were,  by  such  means,  in  the  eye  of  the  law,  become    sole 
proprietors ;  that  they,  having  regard  to  the  premises,  and 
for  a  nominal  consideration  in  money,  conveyed  to  Johan- 
nes, an  equal  undivided  fourth  part  of  the  lands. 

5th.  A  conveyance  from  Johannes,  of  the  30th  October, 


S27  CASE  IN  ERROR  IN  THE 

ALBANY.  1741,  to   Bradt,  Brees  and    Van  Beitfen,  his  sons-in-law, 

'CiTier'^d  ^citing  a  partition  of  part  of  the  lands  among  the  propjie- 

bthers  tors,  on  the  20th  November,  1732,  when  lots  No.  2.  10,  11. 

V. 

Bradt  and  18.  20.  and  21.  fell  to  the  share  of  Johannes,  and  lot  No. 
others* 

^  7.  fell  to  the  share  of  J.  Van  Rensselaer,  and  conveying  to 


them,  in  consideration  of  thirty  pounds,  all  such  right,  es- 
tate, title,  interest  and  demand,  whatsoever,  as  he  had,  or 
*  „g  ought  *to  have,  in  those  lots,  and  the  undivided  land ;    and 

that  this  conveyance  was  either  voluntary,  or  if  for  valua- 
ble consideration,  then  with  notice  of  the  right  or  claim  oi 
Volchert. 

6th.  A  deduction  of  the  title  of  the  appellants  as  the  re- 
presentatives of  Volchert;  and, 

7th.  That  the  respondents  hold  as  volunteers  under  Bradt 
and  Brees, 

The  scope  of  the  bill  then,  was,  that  the  appellants  might 
be  let  in  for  a  moiety  of  the  lands  held  by  the  respondents 
by  tide  derived  from  Bradt  and  Brees,  and  to  have  an  ac- 
count of  the  rents  and  profits. 

To  this  bill  the  respondents  demurred,  and  the  demur- 
rer being  allowed,  there  was  a  decree  of  dismissal,  but  the 
decree  being  reversed  on  appeal,  and  the  cause  remanded 
to  the  court  of  Chancery,  the  respondents  put  in  their  an- 
swer, and  proofs  were  taken. 

The  only  material  question,  as  to  facts  contested  between 
the  parties,  was,  whether  there  was  sufficient  evidence  to 
find  that  the  conveyance  from  Johannes  to  Bradt,  Brees 
and  Van  Beuren,  was  either  voluntary,  or  if  it  was  for  va- 
luable consideration,  then  that  it  wa9  with  notice  of  the 
right  of  Volchert. 

The  proofs  as  to  these  facts,  were, 

1st.  A  partition- deed  of  the  farm  of  G.  T.  Van  Vechten* 
between  Johannes  and  Volchert,  of  the  9th  of  June,  1707, 
reciting  the  svill  of  their  father. 

2d.  A  mortgage  from  Johannes  to  Coyeman,  of  the  2d 
September,  1723,  reciting  the  deed  from   Volchert  for   the 


STATE  OF  NEW-YORK. 


3JJ8 


parcels,  which,  on  the  partition,  fell  to  the  share  of  Johan- 
nes, and  which  then  constituted  his  farm. 

3d.  A  conveyance  from  Van  Beurcn  to  J.  Van  Rens- 
selaer of  the  22d  May,  1 749,  reciting  a  conveyance  *from 
Johannes  to  Brees,  Bradt  and  Van  Beuren,  of  the  12th  Au- 
gust, 1738,  for  all  his  farm. 

4th.  That  on  the  2d  June,  1740,  Brees,  Bradt,  and  Van 
Beurm  paid  8/.  Os.  Id.  for  Johannes  to  one  Fresneau. 

5th.  That  on  the  2'- d  July,  1744. — 5  Bradt,  Brees,  and 
Fa/z  Beuren  became  bound  with  him  to  one  Dow,  for  521. 
8s.  0</.  and  that  they  also  became  bound  with  him  to  one 
Staats  in  about  300/.  but  the  time  is  not  mentioned. 

6th.  That  Van  Beuren,  in  1748,  sold  his  share  of  the 
lands  under  the  conveyance  from  Johannes,  of  the  30th 
October,  1741,  to  one  Collins,  for  20/. 

7th.  The  deposition  of  Bleeker,  examined  as  a  witness. 
He  tetsified,  that  he  drew  the  deed  from  Johannes  to  Bradt, 
Brees  and  Van  Beuren,  of  the  30th  October,  1741;  that 
previous  to  the  execution  of  it,  he  showed  it  to  Volchert, 
who  directed  his  son  to  go  to  the  witness  and  tell  Johannes 
not  to  execute  it ;  that  the  son  told  Johannes  he  was  di- 
rected by  his  father  to  desire  him  not  to  execute  it  j  that 
Johannes  immediately,  thereupon,  left  the  room,  and  after 
an  absence  of  about  fifteen  minutes,  returned  and  said, 
what  shall  J sign  P  I  have  already  signed  to  Dow  and  Jan- 
sen;  that  Bradt,  Brees  and  Van  Beuren  were  present,  and 
Brees  told  him  that  he  did  not  sign  away  any  more  than  he 
had,  and  then  Johannes  signed  it. 


ALBANY. 


*  329 


On  the  hearing,  on  the  bill,  answer  and  proofs,  the  Chan- 
cellor again  decreed  the  bill  to  be  dismissed,  and  thus  as- 
Vigined  his  reasons. 


Mr.  President.  I  dismissed  the  appellants'  bill, 
1.  Because  the  crown  having  granted  to  the   patentees 
jointly,  no  intention  of  the  patentees  to  hold   *in   common 
eon  vary  the  nature  of  the  estate,  either  at  law  or  equity, 


*  330 


CASES  IN  ERROR  IN  THE 


ALU  A  NT. 


Cuyler  and 

ethers 

v 

Bradt  and 
others. 


*  331 


from  that  created  according  to  the  intent  of  the  crown,  ex- 
pressed in  the  grant. 

There  is  no  intent  that  it  should  be  otherwise  expressed 
in  the  grant.  The  estate  was  in  joint-tenancy.  Their  in- 
tention to  hold  as  tenants  in  common,  the  estate  which  pass- 
ed to  them  by  the  grant,  cannot  sever  the  estate  that  was  in 
joint-tenancy. 

2.  Because  the  patentees  paid  equal  proportions  of  the 
purchase-money  to  the  Indians.  This  always  makes  a  joint- 
tenancy  in  equity,  where  the  estate  is  joint  in  law.  The 
reason  of  this  is  founded  on  what  is  laid  down  in  some  of 
the  books  ;  namely,  that  it  seems  to  be  the  doctrine  of  the 
court  of  equity,  that  where  two  or  more  purchase  land,  and 
advance  the  money  in  equal  proportions,  and  take  a  convey- 
ance to  them  and  their  heirs,  this  is  a  joint-tenancy  ;  that 
is,  a  purchase  of  them  jointly,  of  the  chance  of  survivor- 
ship, which  may  happen  to  one  as  well  as  the  other  ;  but 
where  the  proportions  of  the  money  are  not  equal,  and  this 
appears  in  the  deed  itself,  this  makes  them  in  the  nature  of 
partners ;  and,  however  the  legal  estate  may  survive,  yet 
the  survivor  shall  be  considered  but  as  trustee  for  the 
others,  in  proportion  to  the  sums  advanced  by  each  of 
them. ' 

It  has  already  been  intimated,  that  the  patentees'  having 
contributed  equally  in  the  expense  of  acquiring  the  land, 
was  sufficient  for  the  implication  of  a  compact  or  trust  be- 
tween them,  that  no  advantage  was  to  be  taken  by  survivor- 
ship, and,  consequently,  that  the  fitness  of  the  rule  here 
cited,  might  be  questioned. 

This  is  not  only  altogether  a  refinement,  but  it  is  also  evi- 
dently erroneous  ;  because,  in  order  to  equality  *in  chance 
of  survivorship,  there  ought  to  be  equality  of  age,  as  much 
as  equality  of  contribution:  to  this  may  be  added,  that  the 
correctness  of  a  court  of  equity  would  require,  that  the 
presumption  that  persons  ever  act  on  a  calculation  of  chance 
or  luck,  ought  to  be  considered  as  ra  her  odious,  and, 
therefore,  never  to  be  assumed  as  a  ground  of  decision. 
4 


STATE  OF  NEW-YORK. 


331 


3.  Because,  if  the  supposed  trust  is  founded  on  any 
agreement  between  the  original  patentees,  their  heir* 
should  have  been  parties  to  the  suit,  since  they  might,  pro- 
bably, have  been  called  to  show,  that  the  conveyance  to 
the  eldest  son,  was  conformable  to  the  very  terms  of  the 
agreement. 

4.  Because  the  legal  estate  being  in  the  defendants,  and 
no  express  trust  appearing,  the  complainants  should  show 
such  an  implied  trust  as  is  clearly  out  of  the  statute  of 
frauds. 

5.  Because  the  present  defendants  are  bona  jide  pur* 
chasers,  without  notice  of  the  claim  of  the  complainants, 
Bleeker's  testimony  being  inconclusive,  as  to  the  point  of 
notice,  particularly  after  so  great  a  lapse  of  time,  and  the 
death  of  all  the  parties. 

6.  Because,  there  being  no  evidence  of  fraud,  or  of  the 
commencement  of  a  suit  by  Volchert  Van  Vechten  as  set 
forth  in  the  bill,  and  on  which  alone  the  court  of  appeals 
overruled  the  demurrer,  and  the  estate  having  been  held, 
for  upwards  of  eighty  years,  by  the  purchasers  under  Jo- 
hannes, without  any  suit  or  legal  demand  upon  them  ;  the 
court  will  not,  after  such  a  lapse  of  time,  suffer  them  to 
be  dispossessed  by  an  implied  trust,  particularly  as  the 
estate  has,  probably,  with  many  others  in  this  country,  in- 
creased one  hundred  fold  by  the  improvements  thereon 
within  that  period. 


ALBANY. 

Ciiyler  ami 

others 

r. 

Bradt  and 

others. 


*  332 


Per  Curiam,  delivered  by  B  enson,  J.  As  to  the  ques- 
tion of  fact  above  stated,  it  is  not  requisite  to  say  more, 
than  that  the  evidence  at  least  preponderates  in  favour  of 
the  supposition,  that  the  conveyance  of  the  30th  October, 
1741,  although  there  might  have  been  some  pecuniary  con- 
federation for  it,  as  from  Brees,  Bradt  and  Van  Beuren, 
yet,  that  the  greater  inducement  or  consideration  as  from 
Johannes,  was  relationship.  This  rendered  it  more  a  gift 
than  a  sale.  It  appears,  that  Brees,  Bradt  and  Van  Biuren 
then  knew  of  the  will  of  G.  T.  Van  Vechten,  and  of  the  con- 


332  CASES  IN  ERROR  IN  THE 

ALBANY,      veyance  from  the  surviving  patentees  to  Johannes,  so  that 

V-*F"V">1*'       the  conveyance  from  Johannes  to   Bradt.  Brees  and  Van 
Cuyler  :.nd  y  ^  *,:.... 

others.  Beuren,was  not  only, voluntary,  but  they  took  with  a  notice 

V. 

Bradt  and  of  the  right  of  Vo. 'chert,  and  either  the  one  or  the  other  is 
,  sufficient  for  the  appellants. 

Although  the  evidence  is  mentioned  as  preponderating 
only,  the  inference  is  not,  therefore,  intended  to  be,  that  if 
it  was  necessary,  it  could  not  be  shown  to  be  perfectly 
satisfactory. 

As  to  the  question  of  law,  or  right  between  the  parties, 
it  is  to  be  observed,  that  a  use  is  a  right  in  one  person,  to 
have  the  use  or  profits  or  beneficial  interest  of  land,  and 
another  person  to  have  the  right ;  that  is,  to  be  the  legal, 
or  formal  possessor  or  tenant  of  it.  These  uses  were  bor- 
rowed from  the  civil  law,  and  introduced  at  first  by  the 
clergy,  to  evade  the  statutes  of  mortmain  by  procuring  a 
natural  person  to  hold  the  land,  but  to  the  use  of  the  cor- 
porate or  politic  persons,  the  monaster)',  or  religious  house. 
*  331  This  ^contrivance  was  afterwards  used  as  a  means  to  enable 

persons  to  devise,  and  also  to  prevent  forfeitures  by  cestui 
que  use. 

The  land  itself  could  not  be  devised,  but  the  use  might ; 
the  land  was  forfeitable  for  crimes,  but  the  use  was  not ; 
the  only  remedy  for  cestui  que  use,  the  person  having  the 
right  to  the  use,  against  his  feoffee  to  use,  the  person  hold- 
ing the  land,  if  he  refused  to  let  him  have  the  use  of  the 
land,  was  in  a  court  of  equity.  Afterwards,  the  statute 
of  uses,  by  annexing  the  possession  to  the  uses,  gave  the 
cestui  que  use  a  complete  remedy  at  law.  This  produced  a 
distinction  between  executed  and  executory  uses,  the  former 
being  where  the  possession  is  by  force  of  the  statute,  trans- 
ferred to  the  cestui  que  use,  so  that  the  feoffee  to  the  use  is 
only,  as  it  were,  to  forbear  or  be  passive,  and  the  use  will 
execute  itself  in  the  cestui  que  use  ;  the  latter  is  where  an 
act  is  necessary  by  the  feoffee  to  the  use,  to  execute  the 
use,  as  to  convey  over  the  land,  or  to  receive  and  pay  over 
the  profits,  &c.  and  since  the  statute,  executory  uses  have 


STATE  OF  NEW-YORK.  333 

been  more  generally   distinguished  by  the  appellation  of      ALBANY, 
trusts,  which  hath  produced   different  appellations  for  the      v^vx./ 
parties  ;  the  feoffee  to  the  use  is  called  the  trustee  ;  the  ces-        "otheni 
tui  que  use  is  called  the  cestui  que  trust.     The  execution  of      j,  „  ,v'- 
trusts  can  be  still  compelled  in  equity  only,    and  are   there        when. 
subject  to  the  like  rules  with  uses  at  law;  they  are  assigna- 
ble ;    they   are   transmissible  by  descent  and  devise,  and, 
which  is  peculiarly  to  be  attended  to  in  the  present  case,  the 
possession  of  the  trustee  is  the  possession  of  the  cestui  que 
trust,  and  the  rights  of  the  latter  may  be  barred  by  the  sta- 
tute of  limitations,  in  like  manner  as  *uses  or  titles  at  law.  #  334, 
But  trusts  are  implied   or  expressed  ;    implied   trusts   are 
such  as  arise  from  the  case,   which  is,    therefore,  the  fact, 
and  the  trust  is  the  right  arising  from  that  fact ;    express 
trusts  not  being  to  be  deduced  from  the  case  itself,   must 
be  declared.     No  particular  form,  however,  is  requisite  in 
declaring  them,  and  they  may  be  declared  at  any  time.  Be- 
fore the  statute  of  frauds  and  perjuries,  the  evidence  of  the 
declaration  might    have    been   by  parol;    it  must   now  be 
by  writing.     Purchasers  for  a  valuable  consideration,  from 
a  trustee,  do  not  purchase  at  their  peril  against  the  trust, 
and,  therefore,  they  will  not  be  adjudged  to  have  purcha- 
sed, subject  to  the  trust,  unless  it  is  proved  they  had  notice 
of  it. 

To  apply  what  is  here  premised  to  the  present  case  ;  it 
might  be  insisted,  that  G.  T.  Van  Vechten  having  contributed 
an  equal  fourth  part  of  the  expense  in  acquiring  the  land, 
that  fact,  therefore,  was  in  itself  sufficient  to  imply  an  exist- 
ing trust  in  favour  of  him;  that  he  was  to  have  an  equal 
fourth  part  of  the  land  in  severalty,  and  that  a  court  of 
equity  would,  accordingly,  in  case  of  his  death,  have  com- 
pelled the  surviving  patentee  to  have  conveyed  a  fourth  part 
to  his  representatives ;  by  the  conveyance,  however,  from 
the  surviving  patentee  to  Johannes,  the  necessity  of  recur- 
ring to  mere  implication,  for  the  trust  is  saved,  the  recital 
in  that  conveyance  being  a  sufficient  declaration  in  evidence, 
that  such  trust  was  expressed  between  the   patentees,    and 


334 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Cuyler  and 

others 

v. 

Bra dt  and 

others. 


*  335 


coeval  with  their  intention,  to  acquire  the   land  ;    it  was 
their  true  intent,  purpose,  and  meaning,  that  they   should 
hold  as  tenants  in  common,  without  any  advantage  by  rea- 
son of  joint-tenancy  or  survivorship.  *The  trust,  therefore, 
being  an  interest  devisable,  a  moiety  of  the  fourth  of  G.  T. 
Van  Vechten  passed  by  his  will  to  Volchert,  and  the  convey- 
ance from  the  surviving  patentees  is  to  be   deemed   the 
act  by  them  in  the  execution  of  the  trusts ;  so  that  Johan- 
nes, as  to  a  moiety  of  the  lands  thereby  conveyed  to  him? 
look  by  implication  or  construction  of   law,    in  trust   for 
Volchert,  and  this  hath  been  transmitted  to  the  appellants, 
his  representatives.     Johannes  not  having  done  any  act  in 
breach  of  the  trust,  or  adverse  to  it,  so  as  to  be  considered 
as  equivalent  to  a  disseisin  at  law,  until  the  conveyance  of 
the  30th  October,  1741,  the  possession,  therefore,  of  Jo- 
hannes to   that  time,  being  to  be  deemed  the  possession  of 
Volchert,  which  being  within  sixty  years,  when  the  appel- 
lants filed  their  bill ;  and  that  conveyance   being  voluntary, 
or  they  having  notice    at  the  time,   of   the  right  of  Vol- 
chert, the  appellants  are,  therefore,  entitled  to  a  decree  for 
a  moiety  of  the  lands.     Laches  are,  nevertheless,  so  to  be 
imputed  to  them,  that  it  would  not  be  proper  for  a  court  of 
equity  to  aid  them  to  recover  the  rents  or  profits. 

It  will  suffice  to  say,  as  a  general  answer  to  the  reasons 
not  specifically  replied  to,  that  it  is  obviously  to  be  collected 
from  what  has  already  been  suggested,  that  with  respect  to 
the  allegation  in  the  bill,  of  a  suit  by  Volchert  against  Jo 
hannes  for  the  recovery  of  the  land,  it  not  being  proved,  no 
notice  was  taken  of  it  on  the  hearing  of  this  appeal,  either 
by  the  court  or  the  counsel. 


Decree.     On  hearing  counsel  on  both  sides,  on  the  ap. 
peal,  in  this  cause,  this  court  doth  adjudge  and  decree,  that 

*  3  j6  the  decree  of  tlle  said  court  of  chancery  *in  this  cause  be  re- 

versed ;  and  instead  thereof,  this  court  doth  further  adjudge 
and  decree,  that  the  respondents  do,  by  sufficient  convey- 
ances, convey  to  the  appellants  severally  in  fee-simple,   ac- 


other*, 


STATE  OF  NEW-YORK.  336 

cording  to  their  respective  shares   or   interest  therein,    as      ALBANY. 
they  have  in  their  bill  of  complaint  set  forth,  their  title   to      v^-^^s-/ 
the  same,  under  Volchert  Van  Vechten,  one  of  the  residuary         others 
devisees,  named  in  the  will  of  Garrit  7'.  Van    Vechten,  also       BraJt  ami 
in  the  said  bill  set  forth,  an  equal  undivided  moiety  of  such 
of  the  lands,  conveyed  by  yohanncs  Van  Vechten,  the  other 
residuary  devisee,  named  in  the  said  will,  to  Bemardus  Bradt, 
Hendrick  Brees,  and  Barent  Van  Beuren,  by  conveyance  bear- 
ing date  the  30th  day  of  October,  1741,  in  the  said  bill  men- 
tioned, and  held  by  the  said  respondents,  by   title    derived 
from  the  said  Bemardus  Bradt  and  Hendrick  Brees,  or  either 
of  them,  and  that  the  said  bill,  as  far  forth  as  the  same  prays 
that  the  respondents  may  account  for  the  rents  or  profits   of 
the  said  lands,  be  dismissed.     And,  except  as  to   the  costs 
intended  in  the  decree  of  this  court  on  the  former  appeal 
between  the  said  parties,  that   they   respectively  pay  their 
own  costs  on  this  appeal,  and  which  have  hitherto  accrued 
in  the  said  court  of  chancery,  and  that,  as  to  all  such  other 
costs  as  shall  hereafter  accrue  in  the  said  court  of  chancery, 
the  respondents  pay  to  the  appellants  their  costs  in  that  be- 
half to  be  taxed.     And  it  is  ordered,  that  the  said  cause  be 
remanded  to  the  said  court  of  chancery,  and  that  all  neces- 
sary orders  and  directions  be  there  given  for  carrying  this 
decree  into  effect. 

Decree  of  reversal. 


^(Supreme  Court.)  #  337 

Jackson,  ex  dem.  Smith,  against  Hammond. 
ISRAEL  SMITH,  being  seised  in  fee  of  die  premises      Our  statute  ot 

.  .      n     T  <v    1  1       •       j    l~H+>      enabling 

in  question,  by  his  will  of  the  21st   Jidy,    1774,    devised  churd.es,     \ 
them  "  to  the  trustees  of  the  town  of  Brookhaven,  and  thtir  EEeJUeK 
successors  for  ever,  upon  trust  and  confidence,  and  to  the-  JfiJe,£jJtJ 
intent  and  purpose  that  they  did,  and  should,  after  his  de-  *  dcvi*e- 


337  CASES  IN  ERROR  IN  THE 

ALBANY,  cease,  rent  and  hire  the  same  to  any  person  at  their  will, 
and  pay  the  rents  and  hires  thereof,  after  the  expiration  of 
the  time,  during  which  the  same  should  be  legally  charged 
and  encumbered  with  the  lawful  maintenance  and  dower  of 
his  wife,  into  the  hands  of  the  regular  minister  and  other 
ruling  officers  for  the  time  being  of  the   Baptist  Church  of 

Christ  at ."     The  testator  died  on  the  1st  November, 

1 780,  and  his  widow  about  ten  years  thereafter. 

The  trustees  of  the  Baptist  Church  had,  from  the  death 
of  the  widow,  received  the  rents  and  pi-ofits  of  the  premi- 
ses, and  the  defendant,  at  the  time  of  the  commencement  of 
the  suit,  held  the  premises  under  them.  The  lessor  of  the 
plaintiff  was  heir  to  the  testator.  The  trustees  of  the  town 
of  Brookhaven  were,  at  the  time  of  making  the  will,  and 
then  were  a  corporation  capable  to  take  and  hold  lands. 
The  question  was,  "  is  the  plaintiff  entitled  to  recover  ?" 

Per  Curiam,  delivered  by  Benson,  J.  By  the  law  of  En- 
gland, and  which,  as  such,  became  the  law  of  the  colonies, 
lands  were  devisable  in  virtue  only  of  the  statute  of  Hen. 
VIII.  commonly  known  as  the  statute  of  wills.  Special 
customs  were  exceptions  to  the  common  or  general  law  ; 
but,  being  local,  they  formed  no  part  of  our  law,  and  the 
*  338  right  or  *power  to  devise,  granted  by  the   statute,    being 

expressly  limited  or  restricted  from  extending  to  a  right  or 
power  to  devise  to  corporations,  the  devise  in  the  will  or 
Israel  Smith  to  the  trustees  of  Brookhaven,  ought,  there- 
fore, to  be  adjudged  void  ;  so,  that  on  his  death  the  lands 
descended  to  the  lessor  of  the  plaintiff  as  his  heir  at  law. 
This  must  be  admitted,  unless,  as  is  contended  for  on  the 
part  of  the  defendant,  by  our  statute  of  the  6th  April ^ 
1784,  enabling  churches,  &c.  to  incorporate  themselves, 
they  are  constructively,  with  respect  to  lands  possessed  or 
held  by  them,  at  the  time  of  their  incorporation,  made  capa- 
ble to  take  by  devise;  and  that,  to  that  end,  the  incorpora- 
tion is  to  relate  to  the  death  of  the  testator,  so  as  to  over- 
reach the  rights  of  all  others  claiming  under  him. 


STATE  OF  NEW-YORK. 


338 


It  must  be  acknowledged,  that  if  the  words  devised  and 
devi.se,  in  the  4th  section,  had  either  been  wholly  omitted,  or 
if  in  the  sentence  in  which  they  are  found,  they  had  been 
made  expressly  to  refer  only  to  goods  or  chattels,  there 
would  not  then  have  been  a  possible  ground,  for  aco  itruct- 
he  capacity  in  these  corporations  to  take  and  hold  lands  also 
by  devise ;  the  question,  therefore,  between  the  parties 
may  be  more  precisely  stated  to  be,  whether  the  construc- 
tion contended  for  is  necessary,  in  order  to  satisfy  these 
words,  or  to  give  them  their  requisite  due  sense  and  mean- 
ing, considered  as  predicates  or  relatives,  and  the  words 
lands,  tenements,  hereditaments,  goods  and  chattels,  consider- 
ed as  subjects  or  antecedents. 

The  rule  reddenda  sunt  singula  singulis  is  obviously  ap- 
plicable in  this  case,  and  by  a  transposition,  equally  obvi- 
ous, the  sentence  maybe  made  to  read  "all  temporalities, 
whether  the  same  consist  of  lands,  tenements,  heredita- 
ments, goods  or  chattels,  given  or  ^granted,  or  of  goods  or 
chattels  devised"  &c.  whereby  a  perfect,  although  a  less 
extensive  sense  and  meaning,  will  be  given  to  the  word  de- 
vised, and  its  concomitant  devise,  and  the  sentence  will  be 
rendered  consistent  both  with  itself  and  with  law,  and  es- 
pecially with  the  concluding  sentence  in  the  section,  "  that 
the  trustees  shall  hold  the  church  and  lands  thereunto  be- 
longing, by  whatsoever  name  or  person  the  same  were  pur- 
chased or  had,  or  to  them  given  or  granted,  in  as  full  a 
manner  as  if  they  had  been  legally  incorporated,  and  made 
capable  to  take,  receive,  purchase,  have,  hold,  use  and  enjoy 
the  same." 

The  only  manner  in  which,  had  they  been  incorporated, 
they  were  capable  of  taking,  &c.  being  by  gift  or  grant, 
and  not  by  devise,  it  is,  therefore,  not  unworthy  of  notice, 
that  in  the  latter  sentence  the  word  devise  is  omitted,  and 
the  words,  given  or  granted  only  used,  to  which  may  be 
added,  that  if  the  construction  contended  for  by  the  de- 
fendant is  to  obtain,  then  this  consequence  will  follow,  that 
the  legislature  must  be  supposed  to  have  intended  to  give  to 


*  339 


339 

ALBANY. 

Jackson 

v. 

Hammond. 


*  340 


CASES  IN  ERROR  IN  THE 

a  church  a  capacity  to  hold  lands  taken  or  acquired  as  it  were 
before  their  incorporation,  and  refuse  to  them  a  capacity  to 
take  and  consequently  to  hold  lands  acquired  after  their  in- 
corporation, and  without  a  reason  for  the  discrimination  ; 
for,  whether  the  acquisition  was  before  or  after  tho  incor- 
poration, or  whether  it  was  by  gift  or  grant  or  by  devise, 
was  immaterial,  as  long  as  the  value  was  within  the  sum 
limited  by  the  statute.  As  to  the  argument  deduced  from 
the  expression  in  the  statute,  "  although  such  gift,  grant  or 
devise  may  not  have  strictly  been  agreeable  to  the  rigid 
rules  of  law,"  and  that  the  restriction  or  limitation  in  the 
statute  of  wills  from  devising  to  corporations  *is  to  be  con- 
sidered in  the  nature  of  a  strict  or  rigid  rule  of  law,  and, 
therefore  intended  to  be  dispensed  with  by  these  provisional 
expressions,  it  would  be  sufficient  to  observe,  that  it  is  only 
colourable  at  best. 

I  will,  however,  in  answer,  state,  that  if  the  will  in  the 
present  instance  had,  after  the  possession  and  incorporation 
of  the  Baptist  Church,  the  cestui  que  trust  in  it,  been  disco- 
vered to  have  been  attested  by  only  two  witnesses,  the  heir 
at  law  would  be  entitled  to  recover  the  lands ;  this  I  assume, 
as  unnecessary  to  be  demonstrated,  and,  therefore,  if  the 
expressions  cited  were  not  competent  to  cure  a  mere  imper- 
fection in  the  devise,  surely  they  must  be  less  so  wholly  to 
create  a  devise ;  if  they  must  yield  to  the  rule,  and  of 
questionable  utility  in  the  statute  of  frauds,  much  more 
must  they  yield  to  the  rule  confessedly  highly  provident  in 
the  statute  of  wills.  I  will  only  add,  that  supposing  the 
statute  of  Hen.  VIII.  never  to  have  passed,  and  that  we 
had  not  had,  as  was  the  fact,  any  statute  of  wills  of  our 
own,  till  the  present  one  of  1787,  would  the  incorporating 
statute  now  under  consideration,  in  such  case,  have  been 
deemed  impliedly  to  alter  the  common  law,  so  far  as  to  give 
a  right  to  devise  to  a  church,  congregation,  or  other  reli- 
gious society  only?  if  not,  and  the  statute  of  Hen.  VIII. 
having  passed,  and  with  the  express  restriction  or  limitation 
already  mentioned,  should  we  now,  therefore,    decide  for 


STATE  OF  NEW- YORK. 

the  defendant,  will  it  not  follow  from  the  decision,  that 
terms  less  explicit  and  less  forcible  will  suffice  for  an  i?n- 
pliecl  enlargement  or  extension  of  an  express  restriction  or 
limitation  in  a  grant  of  a  right  or  power,  than  for  an  iin- 
plied  right  or  power,  no  otherwise  to  be  considered  as  pro- 
hibited,  except  as  *it  hath  never  been  positively  granted? 
Where  shall  we  find  the  rule  or  principle  for  the  difference 
in  this  respect  in  the  two  cases  ?  My  opinion  is,  that  the 
words  devised  and  devise  in  the  statute,  refer  only  to  goods 
and  chattels,  and  that  to  make  them  refer  also  to  lands,  tene. 
ments,  and  hereditaments,  would  be  a  construction  too  ex- 
tensive to  be  warranted  by  law,  and  consequently  that  there 
must  be  judgment  for  the  plaintiff. 

Judgment  for  the  plaintiff  accordingly. 

(Supreme  Court.) 
Browne  and  others  against  Robinson  and  Hartshorne. 


340 

ALBANY. 

Jackson 

v. 

Hammond. 

*  341 


ON  a  motion,  by  the  defendant,  to  set  aside  the  verdict      Where  goods 

are   sold     by    a 

in  this  cause,  Mr.  Justice  Lewis,  before  whom  it  was  known  factor 
tried  at  the  October  term,  1799,  made  the  following  report:  set-off  canuot'be 
"  This  was  an  action  of  assumpsit  for  iron  sold  and  de-  them  by^tiie 
livered  by  the  plaintiffs  to  the  defendants.  Plea,  the  general  JS?^'  l£l 
issue.     At  the  trial,  the  plaintiffs  produced,  as  a  witness,  *he  fa.cl"r '"  h« 

'  *  r  7  '   own  right,  if  the 

Iknrij  B.  Franklin,  late  a  clerk  of  Nicholas  Cooke,  formerly  p**1*  **  actUHl- 
of  the  citv  of  New-Tori,  merchant,  deceased,  who  proved,  '<'»  principal. 

,  .        '.  .    .        ,         .      ,  l    .  though    the  fac- 

that  the  iron  mentioned  in  the  declaration,  was  consigned  tor    do    carry 

by  the  plaintiffs  to  Cooke,  to  be  sold  by  him,  as  their  factor,  himself,  and  no- 

That  on  or  about  the  7th  day  of  November,  1796,  as  nearly  [KTSiSe  rf 

as  the  witness   could  recollect,  Cooke  sold  the  iron  to  the  re9Pect".'&    (1,t\ 

1  ownership        ol 

defendants  for  the  sum  of  1,080  dollars,  pavable  at  seventy  the   p:00^-   °" 

'  l    ;  t  J    a    sale     by    the 

days  ;  but  at  the  time  of  such  sale,  no  notice  was  given  to  known  betor  <  t 

a     house,    tin- 
principal   may  immediately   maintain  an   action  aginst  In 
may,  by  castoro,  tell  on  -t  eredit,  at   the  n»k  of  tbeir  prin 


341 


CASES  IN  ERROR  IN  THE 


ALBANY. 


Hartshorne. 


*  342 


the  defendants  (nor  was  any  evidence  offered,  to  show 
*that  they  knew)  that  the  sale  was  made  by  Cooke,  as  fac- 
tor or  agent,  for  the  plaintiffs,  or  any  other  persons.  He 
Kobinson  and  testified,  however,  that  it  was  generally  known  that  Cooke 
was  factor  to  the  plaintiffs  ;  but  that  he  then  transacted 
business  as  well  on  his  own  account,  as  upon  commission. 

"  That  after  the  delivery  of  the  iron,  and  before  the  . 
death  of  Cooke,  the  witness,  as  his  clerk,  called  upon  the 
defendants  with  a  bill  of  parcels  for  the  same,  and  request- 
ed their  note  for  the  amount,  which  they  refused  to  give, 
alleging,  that  they  held  a  note  given  to  them  by  Cooke,  for 
nearly  the  same  amount,  which  would  fall  due  about  the 
same  time,  and  that  they  intended  to  set  it  off  against  the 
amount  of  the  iron.  They  at  the  same  time  showed  the 
note  to  the  witness. 

"  That  Cooke  was,  at  the  time  of  the  sale,  and  until,  and 
at  his  death,  indebted  to  the  plaintiffs  in  the  sum  of  20,000 
dollars  and  upwards.  That  after  his  death,  and  before  the 
expiration  of  the  credit  of  seventy  days,  one  of  the  plain- 
tiffs called  with  the  witness,  upon  the  defendants,  and  in- 
formed them  that  the  iron  was  sold  by  Cooke,  as  factor  of 
the  plaintiffs,  and,  at  the  same  time,  gave  notice,  that  they 
should  expect  payment  of  the  same,  upon  which,  one  of  the 
defendants  answered  to  the  plaintiff,  that  he  did  not  know 
him,  and  would  not  pay  him.  It  also  appeared,  that  one 
of  the  plaintiffs,  after  the  above  conversation,  became  the 
administrator  of  Cooke's  estate.  It  was  also  proved,  that  it 
is  the  custom  of  Nexv-Tork  for  factors  to  sell  on  credit  at 
the  risk  of  the  principal,  and  that  it  was  the  uniform  usage 
in  Cooke's  store,  to  sell  agreeably  to  such  custom,  and 
*that  in  this  case,  the  goods  were  sold  at  the  plaintiffs'  risk 
upon  the  common  commission  in  such  'cases.  The  plain- 
tiffs there  rested  their  cause,  and  the  defendants  moved 
for  a  nonsuit,  upon  the  ground  that  no  offer  of  indemnity 
against  the  claims  of  Cooke,  or  his  representatives,  had 
been  made  bv  the  plaintiffs  to  the  defendants,  which  motion 
was  overruled  by  the  judge. 


*  343 


STATE  OF  NEW-YORK. 


343 


**  On  the  part  of  the  defendants,  evidence  was  then  offer-      ALBANY. 
ed  to  be  produced,   that  at  the  time  of  the  sale  of  the  said 
goods,  and  notice  to  pay  the   plaintiffs,  they  held  Cooke's 
note,  dated  the  22d  Julu,  1796,  for  1,080  dollars  and  25    Robinson  and 

'  t  •*      5"  '  ILutshorne. 

cents,  payable  in  six  months  after  the  date,  and  that  they 

had  since  held,  and  still  did  hold  it,  which  note  was  in- 
tended to  be  offered  as  payment.  This  evidence  was  ob- 
jected to  by  the  counsel  for  the  plaintiffs,  as  inadmissible 
under  the  present  issue,  and  that  it  would  be  equally  so,  if 
a  notice  had  been  annexed  to  the  plea.  Whereupon  the 
judge  rejected  that  evidence,  and  directed  the  jury,  that  the 
law  was  with  the  plaintiffs,  and  that  the  note  of  Cooke  could 
not  be  set  off  under  this  issue.  Upon  which,  the  jury 
found  a  verdict  for  the  plaintiffs  for  the  price  of  the  iron, 
with  interest,  from  the  expiration  of  the  seventy  days 
credit." 


Per  Curiam.  Where  goods  are  purchased  from  a  factor 
scienter,  with  intent  by  the  purchaser,  to  set  off  against  the 
purchase,  a  demand  which  he  may  have  against  the  factor, 
the  principal  may,  in  such  case,  and  as  on  a  sale  made  im- 
mediately by  himself,  have  a  suit  against  the  purchaser,  at 
any  time  before  payment  to  the  factor,  every  purchase  so 
made  with  *intent  solely  thereby  to  obtain  payment  or  secu- 
rity from  the  factor  being,  as  against  the  principal,  fraudu- 
lent. 


*  844 


Motion  refused. 


3  o 


344  CASES  IN  ERROR  IN  THE 


(Court  of  Errors.) 

William  Laight  and  others,  against  John  Morgan 
and  others. 

Where  a  bill  THE  substance  and  points  in  this  case  are  so  well  stated 
gecks^an^examii-  m  ^  decision  0f  the  court,  that  it  is  unnecessary  to  do 
nesses  de  bene  more  than  give  the  opinion  on  which  it  was  pronounced. 

esse,  on  account  or  » 

of   age,  &c.   an 

affidavit  of    the  •  ,   .       .       , 

facts  on   which       Kent,  J.  The  bill  of  complaint  in  the  cause  appears  to 

the    application 

is  founded,  is  ne-  have  had  three  objects,  viz. 

bHUcPhavea  ti-       To  obtain  a  discovery  of  facts  from  the  defendants;    to 
and  Cfor   'quiet  perpetuate  testimony ;  and  to  obtain  specific  relief, 
whenever  a  m       Upon  the  demurrer  to  the  whole  bill,  there   were  seven 
seeks  to  transfer  causes  of  demurrer  assigned.     The  three  last  causes   were 

a  matter  cogni-  u    / 

sable  by  law  to  assigned  in  the  same  words  as  in  the   similar  case  of  Le 

chsnccw  nil  ftiM- 

davit  of  thefacts,  Roy  and  others  v.  Service  and  others^  which  was  before  the 
required,  should  court  the  last  year,  and  by  the  decision  then,  are  to  be 
a  bfflrequires  an  deemed  as  having  been  overruled.  The  fourth  cause  of  de- 
^rtrand^oTto  murrer  was  abandoned  by  the  counsel  for  the  respondents 
others,  a  demur-  upon  the  argument  as  untenable.     If  the  third  cause  be  not 

rer  to  the  whole      r  ° 

for  want  of  that  equallv  so,  it  is,  perhaps,  not  material  in  the  present  case, 
affidavit  is  bad.       .H        '      T    ,        '  ,       .  ,       ,     .  .  c     ,  . 

since,  as  I  shall  presently  show,  the  decision  or    this  cause 

finally  depends  upon  this  single  point,  viz.  if  any  part  of 
the  bill  requires  an  answer,  is  a  demurrer  to  the  whole  bill 
good? 

I  confine  myself,  therefore,  to  the  consideration  of  these 
two  questions,  as  arising  out  of  the  two  first  causes  of  de- 
murrer. 

*  345  **•  To  wnat  oDjects>  if  any» in  the  bil1'  was  an  affidavit 

requisite. 

2.  If  not  for  every  object,  is  a  demurrer  to  the  whole 
bill,  for  the  want  of  such  affidavit,  maintainable  ? 

1.  The  bill  alleges  the  loss  of  papers  material  to  the  com- 
plainant's title,  and  seeks  a  discovery  concerning  them  from 


STATE  OF  NEW-YORK. 


345 


the  defendants.  This  is  a  matter  within  the  ordinary  and 
proper  jurisdiction  of  a  court  of  equity,  and  so  far  it  is 
conceded  that  the  bill  did  not  require  an  affidavit.  The  bill 
further  seeks  for  the  examination  de  bene  esse  of  witnesses, 
who  are  alleged  to  be  aged  or  infirm,  or  resident  abroad,  and 
for  this  purpose,  I  conceive  that  an  affidavit  was  requisite, 
by  the  practice  of  the  court,  stating  generally  the  age,  in- 
firmity, and  place  of  residence  of  the  witnesses,  and  as  no 
affidavit  of  this  kind  was  put  in  during  any  stage  of  the 
cause,  a  demurrer  to  that  part  of  the  bill  might  have  been 
good.  The  bill  finally  prays  to  have  the  title  of  the  com- 
plainants to  two  tracts  of  land  established,  and  quiet  pos- 
session given  to  them.  This  is  a  matter  properly  of  legal  ju- 
risdiction, and  relievable  by  the  courts  of  common  law;  and, 
for  this  reason,  I  deem  an  affidavit  to  the  truth  of  the  ma- 
terial facts  stated  in  the  bill,  to  have  been  requisite. 

It  appears  to  me  to  be  an  established,  as  well  as  a  reason- 
able and  fit  rule,  that  whenever  a  bill  seeks  to  transfer  to 
chancery,  a  question  properly  cognisable  by  the  courts  of 
law,  the  facts  rendering  such  transfer  proper,  must  be  veri- 
fied by  oath  ;  so  that  a  suitor  shall  not,  upon  mere  sugges- 
tion or  pretext,  break  in  *upon  and  disturb  the  settled  boun- 
daries of  the  courts  of  justice. 

As,  therefore,  the  bill  in  respect  to  one  object,  the  dis- 
covery, did  not  require  an  affidavit,  and  in  respect  to  the 
other  two  objects,  to  wit,  the  examination  of  witnesses,  ami 
the  relief,  did  require  one,  this  leads  me  to  consider, 

2.  The  second  question,  viz.  whether  a  demurrer  to 
the  whole  bill,  for  the  want  of  such  affidavit,  be  good. 

It  is  an  established  and  convenient  rule  of  pleading,  in 
chancery,  that  you  may  meet  a  complainant's  bill  by  several 
modes  of  defence.  You  may  demur  to  one  part,  answer 
to  another,  plead  to  a  third,  and  disclaim  to  a  fourth  part 
of  the  bill.  If,  therefore,  a  bill  seeks  a  discovery  of  a 
matter  which  is  proper,  and  likewise  seeks  discovery  of 
other  matter,  which  is  not  proper ;  as,  for  instance,  matter 
which  would  charge  the  defendant  with  a  crime,    the  de- 


ALBANY. 


Laiglit  and 

others 

v. 

Morgan  and 
others. 


•  346 


346  CASES  IN  ERROR  IN  THE 

ALBANY,      fendant  must  answer  to  the  proper,  and  may  demur  to  the 
V**^"*!^    improper  questions  put  to  him,  or  he  may   answer  to  the 
others         proper  questions,  taking  no  notice  of  the  residue.     So,    if 
Morgan  and     a  bill,  as  in  the  present  case,    seeks  for  a  discovery,    and 
r °thers'         also  for  relief,  consequential  to  such  discovery,  the  bill  be- 
ing good  for  the  one  object,  without  affidavit,    and  not  for 
the  other,  the  defendant  ought  to  meet  the  sound  part  of 
the  bill  by  an  answer,  and  be  left  to  his  own  option   whe- 
ther he  will  demur  or  not  to  the  other  part. 

I  do  not  find  any  authoritative  rule  declaring  that  if  a  bill 
be  bad  in  part  only,  and  good  in  other  parts,  the  whole  bill 
thereby  becomes  vitiated,  and  will  be  dismissed  on  a  gene- 
ral demurrer.  The  settled  rule  is  most  assuredly  other- 
wise, and  a  bill,  combining  ^discovery  and  relief,  without 
*  34f  affidavit,  though  liable  to  demurre r,  as  to  the  relief  sought, 

shall,  nevertheless,  be  retained  and  supported  for  the  pur- 
pose of  discovery. 

A  different  rule  would  be  very  inconvenient  and  unne- 
cessarily grievous.  To  support  a  demurrer  to  a  whole  bill, 
when  part  of  it,  had  that  part  been  separate  and  distinct, 
would  have  required  an  answer,  is  to  send  a  party  back  to 
travel  the  same  ground  over  again,  with  much  expense  and 
loss  of  time,  and  to  no  useful  purpose.  He  must  file  the 
same  bill  anew,  with  the  omission  only  of  the  exceptionable 
prayers,  and  repeat  the  former  process  for  bringing  the  de- 
fendant into  court,  who,  when  he  arrives,  will  be  in  no 
better  situation  than  he  was  before  ;  since  the  same  answer 
which  might  have  been  sufficient,  and  the  same  consequen- 
ces which  the  defendant  might  have  commanded  then,  must 

follow  now. 

I  am,  accordingly,  of  opinion,  that  the  demurrer  which, 
instead  of  being  confined  to  the  exceptionable  parts  of  the 
bill,  went  to  the  whole  bill,  ought  to  have  been  overruled, 
and,  consequently,  that  the  decree  of  the  court  of  chancery, 
allowing  the  demurrer  of  the  respondents,  and  dismissing 
the  bill  of  the  appellants,  must  be  reversed. 

Judgment  of  reversal  unanimously. 


STATE  OF  NEW-YORK.  347 

N.  B.    Lansing,  Ch.    J.  though   he  coincided  in   the  ALBANY, 

judgment  of  the  court,  said,  that  a  bill  for  discover}'  and  ^ui^hT^a 
relief,  without  affidavit,  was  a  nullity,  and  a  general  demur-         othera 

rer  to  the  whole  bill  good.  Morgan  and 

others 


*Ludlow  against  Dale.  # 


348 


The  opinion  of  Mr.  Justice  Kent,    in   this  cause,   having 
been  referred  to  in  his  argument  on   the  conclusiveness  of 
foreign  sentences^  is  given  now,  as  it  was  not  till  the  pre-  +inte  p  259 
ceding  sheet  was  worked  off,  that  it  came  to  the  hands  of 
the  compiler. 

THIS  was  an  action  on  a  policy  of  insurance  on  the 
schooner  Paragon  and  her  cargo,  from  Aux  Cayes,  or  any 
other  port  in  Hispaniola,  to  the  United  States,  and  war- 
ranted American.  The  insurance  was  effected  for  Moses 
Myers,  of  Virginia,  and  the  vessel  was  captured  by  a  Bri- 
tish frigate  on  her  return  from  St.  Domingo,  laden  with  the 
produce  of  that  island,  and  was  carried  into  Jamaica;  and 
by  the  vice-admiralty  court  of  that  island  was  condemned 
as  good  and  lawful  prize. 

Two  questions  have  arisen  on  this  case. 

1.  Whether  the  sentence  of  the  admiralty  concludes  all 
further  inquiry  respecting  the  neutrality  of  the  property. 

2.  If  it  does  not,  whether  the  testimony  offered  ap- 
pears to  warrant  the  sentence  of  condemnation  at  Jamaica. 

When  this  cause  was  argued  at  the  last  July  term,  I  ob- 
served, with  some  surprise,  that  the  counsel  on  each  side, 
seemed  in  a  great  degree  to  abandon  the  first  point,  and 
taking  it  for  granted,  that  the  question  on  the  warranty  was 
still  open,  they  entered  fully,  and,  I  think,  with  much 
force  and  ability,  into  a  discussion  of  the  several  matters 
if  fact,  on  which  the  proceedings  in  the  admiralty  must 
have  been  founded.     I  shall,  however,  confine  myself   to 


5^8  CASES  IN  ERROR  IN  THE 


Ludlow 

-v. 
Dale. 


ALBAN1/.       the  consideration  of  the  first  question,  because,  in  my  opi- 
nion, that  alone  governs  the   cause.     If  the    sentence   *of 
condemnation  by  a  foreign  court  of  admiralty,  be  conclu- 
sive, over  the  question  of  neutral  property,  it  is    unneces- 
¥  349  sary  to  examine  any  further.     If  it  be  not  conclusive,  and 

the  question  is  still  open  for  discussion,  it  is  then  a  ques- 
tion of  fact  to  be  submitted  to  a  jury,  and  we  have  nothing 
to  do  with  it,  other  than  to  send  it  back  to  the  proper  tribu- 
nal. 

It  is  a  clear  and  settled  principle  of  law,  that  the  sentence 
8  Ersk.    734. 
2  *v.  733.     s  of  a  court  of  competent  jurisdiction  is,  as  to   the   direct 

Vim*   AS.  J 33.  point  under  decision,  conclusive  upon  all  other  courts   of 
1078  123   Mod   tue  state>  within  whose  limits  it  be  pronounced. 
J9i,  195.  Even  foreign  decrees,  whether  sustaining  a  claim  or  dis- 

missing it,  are  generally,  from  a  regard  to  utility,    and   ex 
•       comitate,  received  with  respect,    and  held  binding,    unless 
4  Durnf.    185.  there  be  some  very  cogent  reasons  against  them,  bv  the  re- 

!92.     Sir.    733.  \         °  .  °  '      '. 

2  Kaims,    305.  gular  tribunal  ot  ail  other  nations,  where  the  administration 

376.     1     Black.      c   .        .  ,      ,  ...... 

Hep.  258.260.      °*  justice  is  orderly  and  civilized. 

But  the  sentence  of  foreign  courts  of  admiralty,  are  es- 
pecially received  as  binding,  because  they  proceed  upon 
general  principles  of  the  law  of  nations,  applicable  to  all 
suitors,  and  of  universal  extent  and  reception.     As  these 

„.        ,    • ,  ,    courts  are  all  governed  by  one  and  the    same   law,    equally 

Dong.  610.  614,  t>  J  »       1         J 

615.    6i7._  2      known  to  every  country,  and  equally  open  to  all  the  world, 
Durnj.  330.         all  persons  are,  therefore,  concluded  by  their  sentences,   in 
cases  within  their  jurisdiction.     We   find,  accordingly,  the 
English  courts,  as  early  as  the  reign  of  Charles  II.  regard- 
ing the  decision  of  the  French  admiralty  in  a  question   of 
prize,  as  conclusive  upon  them,  though  at  that  time  England 
neiius,    Knims,  was  a  neutral,  and  France  a  belligerent    power,    and   the 
Skinn.  S9?"       judges  observed,  that  sentences  in  courts  of  admiralty  ought 
to  bind  generally,  according  to  the  jus  gentium, 
*Lord  Holt  more  than  once  recognised  this  law,  and  gave 
2  Ld.  Raym.  it  the  sanction  of  his  great  name. 
$1. '  See  also,  i       In  modern  times,  when  the  law  of  nations  and  commer- 
W'oocW '  tes    2  cm*  *aw>  ^ave  keen  more  correctly  denned,  the  doctrine, 
6 


STATE  OF  NEW- YORK.  350 

that  sentences  of  foreign  admiralties  were  conclusive,  has      ALR.WT. 
been  admitted  in  the  fullest  latitude,  and  the  English  court 
of  K.  B.  have  repeatedly  and  unanimously   decided,    that 
condemnation  in  a  foreign  court  of  admiralty,  of  property 


warranted    neutral,  as    enemy's   property,  was  conclusive       BernanBr. 

evidence  against  the  insured,  of  a  breach  of  his    warranty.  "575.  BarJumv. 

These  several  decisions,  while  they   incontrovertibly  es-  s$9.  be  Souza 

tablish  the  doctrine,  that  if  no  special  ground   of   condem-  m?**"'****' 

nation  appears,  but  the  property  is  condemned  generally  as  irSai°l'cci  v' 

enemy's  property,  or  as  good  and  lawful  prize,  other  courts  /,'?'*•  ;'C2- 

are  bound  to  consider  the  decree  as  decisive  evidence,  that  '<"'.  Park,  sgj. 

,  111  Fernandez  v. 

the  property  was  not  neutral ;  yet  they,  at  the  same  time,  J>aCosta,Park, 

admit,  that  if  the  foreign  sentence  be  so  ambiguous  as   to 

render  it  difficult  to  say  on  what  ground  the  decision  turned, 

or  if  there  be  colour  to  presume   the   admiralty  proceeded 

on  matter  not  relevant  to  the  issue,  evidence  will  be  let  in     / 

to  explain.     So  if  a  sentence  be  on  the  face  of   it  unjust, 

and  reasons  are  given  for  it,  manifestly  illegal,  and  against 

the  law  of  nations,  other  courts  have  a  right    to   judge  of 

these  reasons,  and  to  determine  on  their  validity,  and  this 

was  the  amount  of  the  decision  of  this  court  in  the  case   of 

7i  t        r  -Tan-  tci'n,i 

Smith  v.  Murray  and  Mumjord.  1797. 

The  English  law  thus  understood  and  explained,  I  con- 
sider as  no  novel  doctrine,  but  a  part  of  the  common  law 
of  the  land.  It  is,  indeed,  the  prevailing  usage  of  all 
countries,  whose  jurisprudence  is  enlightened,  and  whose 
administration  is  regular.  It  could  not  exist  in  the  civil 
/ari>,  because  the  whole  *known  world  was  subject   to   the  *  351 

Roman  empire ;  but  in  countries  where  the  civil  law  has 
been  adopted  and  modified,  the  same  principle  prevails,  and 
a  person  condemned  by  a  sentence  of  a  foreign  court,  con- 
fessedly competent  in  the  case,  can  have  no  redress,  but  2  A«m»,366. 
by  a  court  which  has  power  to  reverse  the  decree. 

The  decree  of  the  admiralty  of  Jamaica  cannot  be  said 
to  be  res  inter  alios  acta.  The  assured,  in  the  present  case, 
was  a  party  to  the  suit  instituted,  and  the  condemnation  had 
there  ;  he  applies  here  to  have  the  same  question  agitated 


2  Ernie.  735. 


351 


CASES  IN  ERROR  IK,  &c. 


ALBANY. 


there,  and  which  was  decided  against  him,  tried  anew  ;  the 
question,  whether  his  property,  which  he  had  warranted  to 
be  American,  had  the  requisite  insignia  to  entitle  it  to  the 
privilege  of  neutrality. 

I  shall  forbear  to  give  any  opinion  on  the  testimony 
which  was  produced  and  commented  upon  at  the  argument, 
because  I  am  of  opinion  it  is  totally  irrelevant  in  the  present 
case^  and  that  the  sentence  of  condemnation  being  direct, 
so  as  to  induce  a  necessary  conclusion  that  neutral  or  ene- 
my's property  was  the  point  in  issue  and  decided ;  and  con- 
taining nothing  which  appears  contrary  to  the  law  of  nations, 
is  decisive  against  the  plaintiffs,  and  that  judgment  ought  to 
be  rendered  for  the  defendants. 


INDEX 


To 


THE  PRINCIPAL  MATTERS. 


ABANDONMENT. 

See  insurance,  2.    4. 

ACCOUNT. 

After  a  judgment,  execution  and  sale  under 
a  mortgage-bond,  the  court  will  not 
open  the  account  on  the  mortgage, 
though  there  be  some  degree  of  irre- 
gularity in  the  accounts,  if  they  appear 
to  be  fairly  closed.     Bloodgood  v.  Ztiley, 

124 

See  MORTGAGE. 
ACTION. 

See  promissory  note,  3. 

ADMIN  15  TRATION. 
See  SURROGATE. 


AGREEMENT. 

1.1  Whether  an  agreement  by  a  mortgagee, 
who  has  bought  in  the  mortgaged  pre- 
mises, to  divide  with  the  mortgagor, 
the  surplus  produce  of  a  resale,  after 
deducting  debt  and  costs,  if  he  will 
show  the  best  lands,  so  as  to  get  for  the 
estate  a  given  sum,  be  a  valid  agree- 
ment, or  not?  Query.  Bloodgood  v.- 
Zeiley,  124 

2.  And  if  valid,  query,  whether  the  show- 
ing the  lands  be  not  a  condition  prece- 
dent ?  J  bid. 

APPEAL. 
See  practice,  % 

ASSIGNMENT. 

See  usury-. 

AVERAGE. 

See  INSURANCE,  4, 


ADVERSE    POSSESSION. 
See  sale. 


B 


AFFIDAVIT. 

'See  demurrer,     practice,  4- 


BILL; 

See  practice,  1  4. 


354 


INDEX. 


BOTTOMRY. 
See  INSURANCE,  1. 


CASE. 
See  practice,  3. 

CESTUI    QUE    TRUST. 

See  purchase. 

CHURCHES. 

See  devise. 

COMPUTATION    OF   VALUE. 


in  case  lie  had,  at  the  date  of  the  co- 
venant, or  should,  previous  to  the  suit 
against  the  maker,  discharge  the  note  ;" 
if,  in  an  action  against  the  maker,  the 
payee,  according  to  the  laws  of  the 
country,  go  into  court,  and  deny  autho- 
rizing the  suit  by  the  assignee  against 
the  maker,  the  assignee  cannot  maintain 
an  action  on  the  covenant  against  the 
vendor,  if  by  the  law  of  the  country  the 
payee  be,  in  such  case,  liable  for  the 
amount,  without  first  showing  a  legal 
endeavour,  by  suit,  to  recover  the 
amount  against  the  payee.  Covenants 
are  to  be  construed,  not  merely  by 
their  letter,  but  their  spirit.  Betts  v. 
Turner,  305 

See  recognisance. 


D 


DECREE. 


The  rule  to  compute  the  value  cf  lands  in 
fact  mortgaged,  but  sold  under  an  idea 

of  a  defeasible   purchase,  is  the  time   See  practice,  2.  statute  of  frauds,  1. 
when  sold,  not  when  redemption  asked. 
Bloodgood  v.  Zeiley,  124 


See  pledge. 

CONDITION  PRECEDENT. 
See  AGREEMENT,    1. 

CONSIGNMENT. 

See  surety. 
COURTS. 


DEFEASIBLE   PURCHASE. 

See   computation    of  value.      mort- 
gage. 

DEMURRER. 

When  a  bill  requires  an  affidavit  to  some 
parts,  and  not  to  others,  a  demurrer  to 
the  whole,  for  want  of  that  affidavit,  is 
bad.  Laight  and  others  V.  Morgan  and 
others,  344. 


See  foreign  courts 


COVENANT. 

On  the  sale  of  a  note  not  negotiable, 
•with  a  covenant  by  the  vendor,  to 
pay  the  vendee  a  certain  sum, 
"if  the  vendee  should  take  all  and 
every  legal  step  the  law  directs,  to  pro- 
secute to  effect  the  maker  and  payee, 
to  wit,  if  the  vendee,  and  no  one  in  his 
name,  or  in  that  of  the  maker  could  re- 
cover judgment  legally  against  the  ma- 
ker, on  the  note,  or  against  the  payee 


Our  statute  of  1784,  enabling  churches,  &c. 
to  incorporate  themselves,  does  not 
enable  them  to  take  lands  by  devise. 
Jackson,  ex  detn.    Smith,  v.  Hammond, 

33" 

See  TENANT  AT  WILL. 


DISCOVERY- 

A  bill  for  a  discovery  and  injunction  to 
stay  proceedings  at  law,  must  state 
some  particular  matter,  which  the  com 


INDEX. 


355 


plainant  has  a  right  to  seek  a  discovery 
of,  :<s  material  to  his  defence,  and  with- 
out which  he  canno;  proceed  to  trial. 
A.  mere  inquiry,  because  the  grounds 
of  the  suit  at  law  are  unknown,  cannot 
be  maintained,  being  a  fishing  bill. 
Nnv&eri  and  wife  v.  Wilktt,  256 


E 

EJECTMENT. 
See  TENANT  AT  WILL. 

EQUITY. 
See    PRACTICE,   1. 

EVIDENCE. 

See  FOREIGN  COURTS. 

EXECUTOR. 

See  PLEDGE.         PURCHASE. 


FACTOR. 

On  a  sale  by  the  known  factor  of  a  house, 
the  principal  may  immediately  maintain 
an  action  against  the  vendee.  Factors 
in  New-Tori  may,  by  custom,  sell  on  a 
credit,  at  the  risk  of  their  principal. 
Brcmne  and  others  \. Robinson  and  Harts- 
hornet  341 

See  SET-OFF.         | 
FISHING    BILL. 
SCC    DISCOVERY. 
FOREIGN    COURTS. 

Judicial  acts  of  foreign  tribunals  are  prima 
facie  to  be  deemed  correct ;  therefore, 


no  inference  to  be  made  against  them. 
Smith  v.  Williams,  110 

See  insurance,  3. 

FOREIGN    SENTENCES. 

See  insurance,  3. 

G 


parol  gift  of  lands  creates  only  a  tenancy 
at  will,  by  the  statute  of  frauds.  Jack- 
son, ex  dem.  Jane  Van  Alen,\- Rogers,  314 


H 

HEARING    CAUSES. 
See  practice,  3- 

HOLIDAY. 

See   PROMISSORY    NOTE,  1. 

HOMINE    REPLEGIANDO. 

See  recognisance. 

I 

IMPROVEMENT. 
See  6TATUTE   OF    FRAUDS,  1. 

INCIDENT. 
See  water. 

INFERENCE. 
SU  FOREIGN    COURT*. 


356 


INDEX 


INJUNCTION. 

See  tromissory  note,    2.     discovery. 

INSOLVENT. 

If  the  eridorsor  of  a  note  pay  it  after  the 
discharge  of  the  insolvent  maker,  under 
the  insolvent  law,  the  discharge  is  no 
bar  to  a  subsequent  recovery  against 
the  maker.     Frost  v.  Carter,  311 

INTEREST. 

See  INSURANCE,  1. 

INTERLOCUTORY    ORDER. 

See  practice,  2. 

INSURANCE. 

1-  An  owner  of  a  ship  bottomed  for  more 

than  her  value,  has  not  an  insurable  in- 
terest   in     her.      Smith  v.    William*, 

110 

2-  To  constitute  a  technical  total  loss  of  a 

ship,  by  damage  from  the  perils  insu- 
red against,  she  must  be  injured 
to  the  amount  of  half  her  value  or 
more,  after  deducting  the  one-third, 
new  for  old,  allowed  the  underwriter  ; 
that  is,  she  must  be  injured  to  the  ex- 
tent of  three -fourths  of  her  value  or 
more,  to  warrant  an  abandonment  on 
account  of  deterioration.  Smith  v.  Bell, 
Bell  and  Watson,  153 

3.  In  an  action  on  a  policy  of  insurance, 
the  sentence  of  a  foreign  court  of  ad- 
miralty is  not  conclusive  on  the  charac- 
ter of  the  property,  in  opposition  to  the 
warranty.  Vandenheuvel  v.  The  United 
Insurance  Company,  217 

4.  Under  a  policy  on#  chariot  "free from 
average,"  but  in  which  jettisons  make 
one  of  the  perils  insured  against,  if  the 
box  of  the  chariot  be  thrown  overboard 
in  a  storm,  it  is  a  total  loss,  and  the  in- 
sured entitled,  on  abandoning,  to  reco- 
ver as  for  such,  though  the  carriage 
be  on  deck.    Judah  v.  Randal,        32-t 


JETTISON. 
See  INSURANCE,  4-. 


JOINT-TENANTS. 

See  TENANTS    IN    COMMON 


LANDS. 

See  gifts. 

LEASE. 

See  TENANT    AT    WILA. 


M 

MANDAMUS. 
See  sessions. 

MERITS. 
See  sessions. 

MILLS. 
See  water. 

MORTGAGE. 

If,  after  a  mortgage  be  forfeited,  and  exe- 
cution sued  out  on  a  judgment  recover- 
ed on  the  bond  accompanying  it,  a  con- 
veyance, to  secure  a  portion  of  the 
mortgage  money,  be  made  of  other 
property,  redeemable  on  paying  a  cer- 
tain sum  at  a  future  day,  such  convey- 
ance will  partake  of  the  quality  of  the 
original  transaction,  and  be  deemed  a 
mortgage,  and  not  a  defeasible  pur- 
chase ;  therefore,  if  after  lapse  of  the 
day  for  repayment,  the  lands  so  con- 
veyed be  sold  to  a  bona  fide  purchaser, 
though  the  purchase  will  not  be  im- 
peached, the  grantor  will  be  entitled 
to  an  account,  and  the  sum  at  which 
the  land  was  sold,  with  interest,  will 
be  the  amount  for  which  he  will  be  en- 
titled to  credit,  though  he  did  not  de- 
mand a  redemption,  for  more  than  six 


years    after  the    day  of   repayment. 
Bloodgood  v-  Zeiley,  124 

Set      ACCOUNT.  AOREEMENT,    1.       COM- 

PUTATION     OF      VALUE.  PLEDGE. 

USURY. 


•   N 

NEW   FOR   OLD. 
See  insurance,  2. 

NEW    TRIAL. 
See  sessions. 


INDEX.  357 

PERFORMANCE. 
See    purchase,   statute  of  frauds,  1. 

PLEDGE. 

On  the  deposit  of  a  pledge,  when  no  day  of 
redemption  is  limited,  the  right  of  re- 
demption descends  to  the  personal  re- 
presentatives of  the  pawnor.  If  the 
pawnee  sell  the  pledge  before  applica- 
tion to  redeem,  and  without  demanding 
payment,  he  is  answerable  for  the  value 
of  the  pledge  at  the  time  application  to 
redeem  is  made,  and  it  is  not  in  such 
case  necessary  to  make  an  actual  ten- 
der of  the  balance  that  at  the  time  of 
such  sale  might  have  been  due.  Cer- 
telyou  v.  Lansing,  200 


NOTICE. 

A  conveyance  with  a  recital  of  the  intent 
of  a  purchase,  is  a  conveyance  with  no- 
tice, and  .he  grantee  takes  subject  to 
trusts  implied  as  well  as  expressed. 
Cuyler  and   others  v.  Bradt  and  others, 

326 


NOTICE    TO   QJJJT. 

S*e  TENANT    AT    WILL. 

o 

ORDER. 
See  practice,  2. 


PRACTICE. 

J.  Where  relief  at  law  is  doubtful,  equity 
will  retain  the  bill.  Ludlow  tsf  Ludl&m 
v.  Simond,  1 

2.  If  a  cause  come  before  this  court  on 
appeal,  from  an  interlocutory  order, 
and  the  whole  merits  of  the  case  ap- 
pear, the  court  will  make  a  final  decree 
and  direct  the  chancellor  to  carry  it  in- 
to effect.  Bush  v.  JJvingston  &  Tovin- 
send,  66 

3.  A  cause  cannot  be  set  down  for  hearing 
till  cases  are  delivered.  Hallett  &■ 
li<nvne  v.  Jenis,  86 

4.  Where  a  bill  seeks  an  examination  of 
witnesses  de  bene  esse,  on  account  of 
age,  f*c.  an  affidavit  of  the  facts  on 
which  the  application  is  founded,  is  ne- 
cessary. So  on  a  bill  to  have  a  title 
established,  and  for  quiet  possession  j 
for  whenever  a  bill  seeks  to  transfer  a 
matter  cognisable  by  law,  to  chancery, 
an  affidavit  of  the  facts  on  which  it  is 
required,  should  be  stated.  Laight  and 
othert  v.  Morgan  and  others,  344 

See  discovery. 


PATENT. 
See  tenants  in  common. 


PRESUMPTION. 
See  promissory  note,  2. 


PAYMENT. 
See  statute  of  frauds,  1. 


PRINCIPAL. 
See  factor.      surety- 


35B 


INDEX. 


PROMISSORY   NOTE. 

1.  A  promissory  note  falling1  due  in  New- 
Tori  on  the  4th  of  July,  is  payable 
the  3d,  the  4th  being-  by  custom  a  pub- 
lic holiday  in  that  place.  Lewis  v  Burr, 

195 

2.  When  a  note  is  purchased  after  due, 
every  presumption  is  to  be  made 
against  the  purchaser.  Therefore,  if 
he  state  it  to  have  been  generally  in 
such  a  year,  and  the  maker  has  assign- 
ed his  property  under  the  insolvent 
law,  on  the  16th  of  January  in  that 
year,  it  shall  be  presumed  the  purchase 
was  after  the  assignment.  A  note  pur- 
chased after  due,  and  after  an  assign- 
ment under  the  insolvent  law,  cannot, 
in  an  action  by  the  assignees,  in  the 
name  of  the  insolvent,  be  set  off  against 
a  debt  due  to  the  insolvent's  estate. 
Johnson  v.  Bloodgood,  303 

3.  An  action  is  maintainable  in  our  courts 
on  a  promissory  note  within  our  statute 
by  the  holder,  though  made  in  Connecti- 
cut, where  the  suit  must  be  in  the  name 
of  the  original  payee.     Lodge  v.  Phelps, 

321 

See     INSOLVENT.        COVENAXT. 

PURCHASE. 

If  an  executor  has  a  power  to  sell  for  the  be- 
nefit of  a  third  person,  a  purchase  by 
him  from  his  cestui  que  trust  is  not  fa- 
voured in  equity,  and  a  bill  by  him  for 
a  specific  performance  cannot  be  main- 
tained ;  but  it  seems  that  a  purchase 
by  a  trustee,  who  is  also  a  cestui  que 
trust,  may,  if  to  save  the  property  from 
loss,  be  sustained .  Munro  v.  Allaire,  183 

See  MORTGAGE.       PROMISSORY     NOTE,     2. 
SALE. 


R 

RATIFICATION. 

See    TENANT    AT    WILL. 


RECOGNISANCE. 

If  a  recognisance  in  a  homine  rcplegiandohz, 
that  the  slave  claimed  should  prove  his 
liberty,  and  personally  appear  in  court, 
and  prosecute  his  suit  with  effect,  it  is 
forfeited  b.  the  appearance  and  sur- 
render of  the  slave  to  the  person  claim- 
ing, notwithstanding  he-  be  on  such  sur- 
render accepted.  Covenhoven  v.  Seaman 
and  others,  322 


REDEMPTION. 

See    COMPUTATION     OF     VALUE. 
CAGE.       PLEDGE. 


RELATION. 
See  sale. 

RELEASE, 

See]  surety,     water. 

RELIEF. 
See  practice,  1. 


SALE. 

If  a  bargain  for  the  purchase  of  land  be 
concluded,  and  at  the  expiration  of 
some  time,  the  conveyances  duly  exe- 
cuted, the  subsequent  deeds  will  so  far 
have  relation  to  the  day  of  concluding 
the  bargain,  that  an  intermediate  sale 
by  the  vendee,  will  be  good  against 
him  and  his  privies,  and  the  possession 
of  the  original  vendor  cannot  be  urged 
as  a  possession  adverse  to  the  vendee, 
and  therefore,  that  nothing  passed  by 
his  deed.  Jackson,  ex  dem.  Loan  Offi- 
cers of  Rensselaer  and  Crabb,  v.  Bull,  301 


RECITAL. 
See  notice. 

4 


See  computation  of  value,  mort- 
gage, purchase.  statute  of 
frauds,  2.    surety. 


INDEX. 


359 


SESSIONS. 


SURROGATE. 


sessions  cannot  grant  a  new  trial   on  The  Surrogate  has  a  diseretionarr  power  to 
the  merits  ;    if  they  do,   a   mandamus  elect  out  of  those  of  the  next  of  kin  of 

will  go,  forbidding   them   to  proceed.  the  intestate,  any  one  in  an  equal  de. 

The  People  v.  Sessions  of  Chenango,  319  jrree,  and  grant  to  such  person  the  ad. 

ministration.    William&  George  Taylor 
SETTING    DOWN    CAUSES.  V'  De!<lr<*}'>  149 


See  practice,  3. 


SET-OFF. 

Where  goods  are  sold  by  the  known  factor 
of  a  house,  a  set-oft  cannot  be  made 
against  them  by  the  purchaser,  for  a 
debt  due  from  the  factor  in  his  own 
right,  if  the  goods  be  actually  those  of 
the  principal,  though  the  factor  do  car- 
ry on  business  for  himself,  and  nothing 
be  said  at  the  time  of  sale,  respecting 
the  ownership  of  the  goods.  Browne 
and  others  v-Hof'inson  &  Hartshorne,  341 

See  promissory  note,  2. 

SPECIFIC    PERFORMANCE. 

See  PURCHASE.     STATUTE  of  frauds,  1. 

STATUTE    OF    FRAUDS. 

1.  Payment  of  consideration-money,  pos- 
session, and  making  improvements, 
take  a  case  out  of  the  statute  of  frauds, 
and  will  entitle  to  a  decree  for  a  spe- 
cific perfoimance.  Wetmorc  v.  White 
&  White,  87 

%  A  sale  by  loan  officers  is  within  the 
statute  of  frauds  Jacison,  ex  dem.. 
the  Loan  Officers  of  Rensselaer  and 
Jchn  Crabb,  v.  Bull,  301 

See  gift. 


SURETY. 


TENANTS    IN    COMMON. 

Where  several  patentees  bear  in  equal  prof 
portions  the  expense  (,f  obtaining  a  pa- 
tent, and  by  the  recital  of  a  deed 
among  themselves,  it  appears  they  in- 
tended to  purchase  in  common,  they 
will  be  taken  as  tenants  in  common, 
and  not  as  joint-tenants,  though  the  pa- 
tent be  to  them  jointly-  Cnyler  and 
others  v.  B'adt  and  others,  326 


TENANT    AT    WILL. 

If  a  tenant  at  will  lease  lands,  the  mere  per- 
mitting the  lessee  to  build  and  enjoy 
under  the  term,  is  not  a  ratification  of 
the  lease  by  the  owner  of  the  land,  nor 
will  it  prevent  him  from  legally  devi- 
sing it,  and  his  devisee  may  recover  in 
ejectment  without  notice  to  quit.  Jad- 
sen,  ex  dem.    "Jane  Van  Alen,  v.  Rogers, 

314 

See  gift. 


TOTAL    LOSS. 
See  insurance, 

TRUSTEE. 
See    purchase. 


If  a  surety  engage  to  make  good  the  defi-  ,-j 

ciency  arising  from  a  sal  ••>  at  ^ 

a  given   place,  and    consigned    to    the 

person  to  whom  the  security   is   given,  ,..„.., 

who  has  the  whole   control  of   the  ad- 
venture,    a  saic  by   the  consignee  at  v 
another  place  releases  the  surety.  Lud-   A  security  made  on  a  good   and  ba-ia  Mt 
few  &  Lndltm  v.  Sim                           *                                " ,nnot  be  ,:v 


360 


1  N  D  E  X. 


account  of  a  usurious  transfer ;  there- 
fore, where  a  mortgage  is  ass  gned  to 
a  third  person,  who  pays  what  is  due 
on  it  to  the  mortgagee,  the  mortgagor 
cannot  avoid  it  in  the  hands  of  that 
third  person,  on  account  of  an  agree- 
ment to  repay  him  a  sum  exceeding  the 
money  paid  and  legal  interest,  but  such 
excess  will  be  denied,  and  only  the 
money  actually  paid  and  lawful  interest 
allowed.  Bus h  v.  Livingston  and  Town- 
send,  66 


V 

VALUE. 
See  computation  or  valve. 


w 

WARRANTY. 

See  insurance,  3- 

WATi-R. 
The  water  of  a  raceway  of  a  mill,  will,  on 
a  sale  of  the  mill,  pass  as  an  incident. 
If  the  water  in  a  stream  be  owned  by 
two  persons,  whose  lands  are  on  oppo- 
site sides,  and  they  agree  to  erect  mills 
on  the  land  of  one,  and  turn  the  whole 
stream  to  the  mills,  it  is  an  appropria- 
tion of  the  water  to  the  mills,  and  if 
they  be  held  jointly  or  in  common,  a  re- 
lease of  the  right  of  one  tenant  in  the 
mills,  wijl  pass  his  right  in  the  water 
also-     Wetmore  v.  White  &  White,      87 

WITNESS. 
See  practice,  1. 


THE  END. 


UCSB     L1BKAKI 


A     000  616  887 


